The Power Of Administrative Organization On Restitution Of Unjust Enrichment In China

Since 1950 s,the order change from administration to service administration,the administrative body of the center of gravity from control to service,pay more attention to listen to the voice of the people,on compassionate,improving people’s livelihood.In the regulation of administrative legal relations,most of the laws and regulations focus on restricting public power,while ignoring the protection of the public property of the state and the administrative subject.Therefore,there is a large number of judicial practice on the administrative relative person to get the case of unjust enrichment need to be resolved.However,due to the rule of law in the modern environment,the power of the administrative subject is limited to the scope of administration according to law,the return of unjust enrichment to the relative lack of legal basis and support.It is known to all that unjust enrichment,as a system of adjusting the balance of property in civil law,has lasted for more than two thousand years since the beginning of the Rome law.The system of unjust enrichment is constantly developing and improving,and the reasons for the occurrence of the creditor’s rights in the modern private law and the contract,tort,and non management.At the forefront of public law in theory and practice in Germany,in order to solve the administrative subject request the administrative relative person to return the possession of public property without legal basis of this problem,but there is no legal support herself on "the unjust enrichment" this concept into the system of public law,the provisions in the law of administrative subject entitled "unjust enrichment the right to request the return of".Subsequently,the Taiwan region of China draw lessons from the experience of Germany,also will "unjust enrichment" into the law,and play an irreplaceable role in the judicial practice.This article is inappropriate for Germany and Taiwan of China on the administrative subject the claim for restitution of the relevant theory and practice of learning,how to construct the administrative body suitable for mainland China’s claim of unjust enrichment of the content as the focus of the study,put forward suggestions for the construction of legal system and promote the direction of China’s administrative law.This paper is divided into four parts.The first part introduces the law of Germany and Taiwan region of China on the improper administrative subject claim for restitution,and details of Germany and Taiwan region of China in the judicial practice of the law of the blank part of the administrative body for the unjust enrichment of different relief measures to the administrative relative person.The second part,to summarize and combing the law on unjust enrichment "and the concept of" improper administrative subject claim for restitution ",analyze its relationship with similar concepts,focuses on the analysis of the" law on unjust enrichment "elements include: public relations;relative person by national interests,and by the loss.The relative benefit of a causal relationship with the damage state between the three aspects;no legal basis on the public law.The third part,combined with the cases in the judicial practice of our country,analyzes the specific circumstances and remedies of the unjust enrichment of the administrative counterpart.The fourth part is the focus of this article,combined with China’s specific national conditions,for the establishment of the administrative body of the right to return the unjust enrichment system of specific legislative proposals.Firstly,it explains the necessity of establishing this system,and then elaborates in detail the four aspects: the way of realization,the scope of the return,the burden of proof and the limitation of time.The author thinks that the administrative subject should be given the power to require the administrative counterpart to return the unjust enrichment.In the case that the relative person does not return the unjust enrichment in accordance with the administrative sanction,the administrative enforcement law may be invoked for enforcement.Finally,the establishment of the administrative body of the executive body of the right to return the unjust enrichment system is the general trend.As China’s "administrative procedure law" the contents of reference,proposes to give our administrative subject in the "administrative procedure law" in to administrative punishment to the administrative relative person condictio indebiti,requirements of administrative law subject both efficiency and fairness in the administrative punishment decisions,and make detailed provisions in return the scope,burden of proof,limitation,limit public power to a certain extent,to avoid disputes in judicial practice.