On Administrative Displacement Of Fulfillment

In practice, displacement of fulfillment’s applicable frequency is getting higher and higher, and this is very good trend, also in line with the minimally invasive principle of "Administrative Enforcement". However, as the displacement of fulfillment provisions in the "Administrative Enforcement" is relatively general, there are many administrative organs discretionary matters. Because the standard is fuzzy, in the application of displacement of fulfillment the administrative authorities appear some problems, or because of lack of supervision, there is the phenomenon of abuse, especially the abuse of the instant displacement of fulfillment. Therefore, the theoretical research on behalf of displacement of fulfillment is very important. This article mainly discusses around the displacement of fulfillment’s system, and analyzes problems of displacement of fulfillment.The body of this paper consists of the following four parts:Introduction. This section introduces the thesis writing background, research, and explains the purpose of writing.The first chapter is theoretical basis and classification of displacement of fulfillment. This section describes the displacement of fulfillment system’s theoretical basis of the minimally invasive principle, the principle of administrative efficiency, expecting the initiative to fulfill principle of administrative counterpart; introduction the classification of displacement of fulfillment:the ordinary displacement of fulfillment and the instant displacement of fulfillment; by referring to local rules and regulations, the instant generation’s scope is road, river, waterway own territory’s spills objects, obstacles, pollutants, or seriously affect the normal order of public places and spills material, obstacles, pollutants impact on the health of citizens in the public areas.The second chapter is displacement of fulfillment applicable conditions and procedures. This section describes the object of displacement of fulfillment is the administrative counterpart failing to perform obligation within a certain period, and this is not considering the subjective aspect of the administrative counterpart; analysis of the administrative counterpart to fulfill the obligations in the process of displacement of fulfillment processing still have to bear the costs associated with this charge and the executive needs to liquidated damages paid to third person.The third chapter is the legal relationship of displacement of fulfillment. This chapter is the core part of the thesis. In this part, I define the specific implementation behavior should be strictly limited within the executive staff, and when the executive authorities is the generation performer, it shouldn’t employ or direct other person who isn’t the executive staff to carry out the implementation of the displacement of fulfillment. If the administrative organs do, the person who completes the displacement of fulfillment is the true generation performer; analyzing the choice of the third person should be no interest consistent relationship with the executive authorities, and when there are multiple subjects, the administrative organs should select the third person by the competition mechanism. The relationship between the administrative organs and the third person is executive contract rather than the field of private law contractual relationship. And on this basis, the rights and obligations of the executive authorities, the third person and administrative counterpart were analyzed; the administrative counterpart and generation performer’s damages claims object and basis were analyzed.The forth chapter is the collection of displacement of fulfillment’s fees. When the third party or administrative authority as the generation performer, it needs different displacement of fulfillment costing standards; analysis the advantages and disadvantages of prepaid and post-collection; my view is the prepaid is more suitable because it can give administrative counterpart psychological pressure to fulfill their obligations in line with the displacement of fulfillment system’s spirit; this section also analysis how to do when the administrative counterpart doesn’t pay the fee to administrative authority, my view is the administrative authority can cite "Administrative Enforcement" the fourth Chapter II of the implementation of the monetary obligations of Article45,46of the requirement that the implementation of the pay the fine or late fees. If he still fails to perform, administrative organ of the enforcement of rights can be enforced.