| As an important and controversial topic in administrative law, administrative inaction has attracted many scholars in China. They analyze the definition, structure and remedy of administrative inaction from legal dogmatic angle. This research approach may be helpful to understand administrative inaction, but it also neglects native judicial practices. In fact, many judges from grassroots people’s courts have accepted and heard some new administrative inaction cases beyond contemporary statutes and theory. This article therefore collected eighty typical cases relating to administrative inaction in the Bulletin of the Supreme People’s Court and the Selected Cases of People’s Court in order to sum up the wisdom of Chinese judiciary.As to the ingredients of judging administrative inaction, administrative judges have developed triple standard including the origin of the obligation of agency action, the possibility of agency actual action and whether the agency acted or not. In addition to legal norms, the obligation of action can also originate from administrative rules, administrative contracts, administrative actions and former decisions. As to the possibility of actual action, some typical cases have identified three aspects, i.e., the risk prediction possibility, the damage avoidance possibility and the anticipation of the public. Administrative inaction may have different appearances, so the judgment of whether the agency acted or not should combine both subjective and objective aspects based on individual cases.According to contemporary judicial practices, there are three different judgment forms for court to adjudicate, i.e., judgment for performance, judgment for dismissal of the claim, and judgment for infraction confirmation and compensation. In order to give a suitable judgment, administrative judges should deal with the relationship between the relative independent review and the deference to agency discretion. These fresh native judicial experiences conquest the outdated statute provision and the rigid theory, so we can own our specific contribution to identify and resolve administrative inaction. |
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