| The research of unlawfulness of administrative nonfeasance and its criterion based on traditional doctrine of liability can not meet the development of State Compensation Law in the background of welfare administration. To make correspondence between administrative duties and public welfare, and to fulfill the executive power’s public functions in terms of value level, it is necessary to make an intensive study on failure to fulfill public functions as an independent form of administrative negligence in public duty. Failure to fulfill public functions means that, as the representative of the state, the administrative subject violates its duty of care when exercises its administrative discretion and is slack in its functions, which results in the failure to fulfill public functions expected by law.In consideration of cost effectiveness or other conveniences, executive officials often choose to perform their statutory duties literally, rather than actively achieve their public functions in terms of value level. Although the Supreme People’s Court has tried to remedy the defect of State Compensation Law by judicial interpretation, the executive officials may still evade state compensation responsibility through the defect of criterion of administrative nonfeasance itself. Fortunately, the amended State Compensation Law, which will come into effect in December 1st, 2010, has recognized diversified doctrine of liability instead of traditional unlawfulness only.As an independent form of administrative negligence, failure to fulfill public functions can be both unlawful administrative action and nonfeasance, so the judgment of negligence should not rigidly adhere to the traditional classification of action and omission, but should adopt an independent criterion. The negligence can be determined by three essential factors, that is, to violate the reasonable duty of care, to be slack in behavior, and failure to achieve the public functions expected by law. Meanwhile, the judgment of damage depends on the recognition of the reasonable anticipative benefit of the counterpart, and the judgment of causation should correspond to reasonability and rationality. |
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