赔还是不赔——行政不作为赔偿案件中的哈姆雷特式问题

关于行政不作为国家赔偿的讨论早已不是新的话题,但已有的探讨并没有穷尽"赔还是不赔"--这一哈姆雷特式问题的答案,尤其是现有的最高人民法院关于不作为国家赔偿的司法解释存在一定程度的误导作用.实践中,行政不作为赔偿案件在诉讼中会面对司法审查权与行政裁量权的冲突问题和几种赔偿责任并存时请求权的排序问题.一般来说,对裁量行为违法实行赔偿责任豁免,但如果行政机关滥用裁量权,则应当承担赔偿责任;而几种赔偿责任并存时,究竟采用何种赔偿责任形式,问题非常复杂,理论研究也尚处于不成熟阶段.

To Compensate or Not to Compensate --On the Hamlet- style problem in the compensation cases of administrative omissions

The discussion about the state compensation of administrative omissions is no more a new topic. But the past researches have not found the answer to the Hamlet-style question "to compensate or not to compensate" yet. And the judicial explanations by the Supreme Court about the state compensation of administrative omissions also have certain misleading elements. Practically, in the compensation cases of administrative omissions, there exist some conflicts between judicial investigations and administrative discretions and the ranking of several co-exist compensation obligations is another problem. Generally speaking, the illegal administrative discretions should exempt from compensations. However, if administrative organizations over-use its power of administrative discretion, compensations should also be charged by the concerned organizations. Currently, it is rather complicated to find a suitable way to make compensations while there co-exists several compensation obligations, and there is no well-rounded theory about it yet.