Construction Of The Claim Of Restitution System In Chinese Administrative Law

Law-based administration is the key to improving governance efficiency and social welfare,which is mutually reinforcing with the modernization of governance capacity and the construction of administrative law normative system.Over the years,administrative law has tried to break through its theoretical limitation,such as the expansion of adjustment field to private sphere,the diversification of adjustment method and the change from order to consultation and participation and so on.The theory and practice of new administrative law has been continuously deepened.On the cusp of economic,political and information changes,what should be alarmed is that any careless practice of administrative action rather than right relief may lead to the rapid dissolution of long-established public prestige.Therefore,in the face of new administrative tasks and challenges,there is an urgent need to expand the systematic pattern of administrative law to good governance,circulation and interaction.Under this background,tax refund based on the taxation and regulation power,restoration of property order after the invalidity or revocation of administrative agreement of procurement,auction and compensation,and restitution after the revocation,abolition or elimination of beneficial administrative action,are not only related to the three legal status of citizens relative to the state,but also a bridge between public and private law as a parallel system of unjust enrichment of civil law.However,the restitution claim that frequently occur in practice have no basis in administrative law,and judges have to turn to civil law for rescue.In addition,there are problems such as the one-way limitation of the plaintiff qualification in the Administrative Procedure Law,the standards of stakes which are difficult to be extended,the lack of rules of the restraint of restitution in local administrative procedures,and the confusion between restitution and compensation responsibility in the state responsibility system and so on.These problems are rooted in the lack of regulation of basic theory and the entire related system rather than the single-dominated administrative behavior-centered theory.Therefore,reflection of system,reveal of attribute,typed guidance and analysis of civil law norms based on the restitution claim in administrative law are of great significance in establishing independent value system and expanding institutional norms in administrative law.The restitution claim in administrative law,also called the unjust enrichment in public law,is to regulate the relationship and content of debt which is abstracted from practice of administrative restitution,from the perspective parallel to the system of unjust enrichment in civil law.But the principle of good faith in the theory of private law does not correspond exactly to the principle of trust protection,and the choice of conflicts between public interest and personal trust interest lacks enough theoretical support.Even though we notice that the nature of the restitution claim of "unjust enrichment",and attempt to relate it with of the right of claim in the civil law,it is still only the macro transplantation of the civil law system and theory,and leads to the dependency of the right of claim in private law on the legal system.Existing studies use payment or non-payment unjust enrichment in civil law to classify the restitution claim in administrative law,making non-payment claim for restitution outside the beneficial administrative supply lack of normative and practical foundations.The problems and challenges do not negate the spirit and value of exploration.Even Germany,which has a long history of restitution claim in public law,has experienced three stages of direct application,analogy,and independent construction,and continue to develop from dispute and conflict in practical and theoretical research.Prior to the publication of the new Civil Code,there was only one provision and one judicial interpretation of unjust enrichment in civil law.Judicial judges can only bluntly state that there is no provision or it should not be expanded in face of nonexistent interest or the third party's obligation of restitution.The four articles of unjust enrichment in the Civil Code,not only expand the normative analysis basis of the right of claim in private law,but also a new opportunity for the construction of the system of claim for restitution in administrative law.Previously,the research on administrative law could not obtain analogous "supply" from the analysis of civil legal norms.In the case of situation beyond the general requirements,the fairness and consistency of trials are difficult to be guaranteed.In particular,the revocation or abolition of the beneficial administration often occurs due to improper acts of the administrative organ,or is related to the beneficiary's use of fraud,bribery or other improper means,or is simply the conflict between trust protection and public interest.The lack of unified standards and legal analysis of the rules can easily make judges in a dilemma.In addition,which way the administrative body choose to restitute is widely disputed in the extraterritorial system,while it is rare in China's social practice and judicial trial.But even the smallest detail does not prevent it from being an important part of the process of administrating according to law.Fortunately,in several announcements on the advancement and the periodic results of administrative public interest litigation,we clearly sort out the problem of multiple parallel restitution methods,such as notifications,decisions,and prosecutorial recommendations,so that the conflicts and choices of abstract theories have practice-oriented basis.Based on the equality of property rights and administrative superiority in the field of beneficiary rights,the method of restitution should be decided by administrative litigation or administrative decision.But limited by the one-way plaintiff qualification of the administrative litigation law and the helpless choice of civil law relief,there is still a long way to go to establish the relevant system of restitution claim in China.It is believed that with the drafting of the Administrative Procedure Law and the acceleration of the national legislative process,this system will certainly be realized in the near future.To this end,we need to regain basic theories such as public law rights and administrative legal relations oriented to the claim right,alleviate the inadaptability of the single dominance of administrative act in the context of changes in practice,and view the issues related to the connection of the public and private law system and the circulation of the administrative law system through the system construction and attribute reveal based on the restitution claim in the administrative law.First,we should reconstruct the constituent elements of the restitution claim in administrative law,abandon the judgment of the causal relationship between the acceptance of interests and suffering of damages,and shift to the subdivision of the elements including the acceptance of interests and the non-legal reasons based on the specific administrative legal relationship.Second,based on the differences in the nature of legal status of citizens theory and the restitution practice in administrative law,type division and guidance on application of rules should be made related to the state's claim right,property right,and citizen's beneficiary right,in order to realize the guidance value of classification and the need for personalization considerations brought about differences of elements in various areas.Third,taking the publication of the Civil Code as an opportunity,we should clarify the disputes and strategies of application of the civil law norms,such as subjective imputation as a consideration of whether to add interest,independent calculation of interest return,an expiration date by equitable decision,the substantial reference of interest rate standards,and the legal principles of the third party's return obligation and so on.Fourth,based on the goal of system construction of claim right in the administrative law,we should regulate and converge the system of administrative substantive law,procedural law and litigation Law.