我国征收补偿协议履行机制研究
发布时间：2019-01-24 19:33
【摘要】：《征收与补偿条例》对征收补偿协议的规定，在性质与功能上发生了很大转变，却并未对履行机制做相应调整。作为行政合同的征收补偿协议，，条例对其履行过程中行政合同特权的适用空间未作规定，仅就不履行时的纠纷解决途径规定为司法诉讼路径。在被征收人不履行时，房屋征收部门除提起诉讼外欠缺其他有效方式促使搬迁义务的履行。这不符合适用征收补偿协议以寻求被征收人配合并快速实现搬迁任务的目的。因而条例对征收补偿协议履行机制的设计存在执行效力不足的缺陷。因此征收补偿协议此种基于协商的柔性行政方式在提高被征收人可接受度及参与度的同时，为避免协议不履行时所进行的冗长司法诉讼程序，应建构一种迅速实现合同目的强制执行机制。本文通过对征收补偿协议履行机制存在缺陷的分析，及其执行效力的理论反思，得出征收补偿协议执行效力不足的完善可基于德国、我国台湾地区法制的比较研究而提供借鉴。 全文共分四个部分： 第一部分是全文的论证基础，讨论的是征收补偿协议履行机制在制度规范上的变迁及存在问题。首先基于对《征收与补偿条例》第25条的规范分析，得出征收补偿协议在性质与功能上的转变。其次在行政合同语境下讨论这种转变的理论反思。然后引出履行机制未做相应调整所存在的制度上的困境。 第二部分从征收补偿协议的性质与功能着手，即其与征收补偿决定的替代关系。主要分析征收补偿协议诉讼履行机制存在与适用合同快速实现征收任务的冲突，即执行效力不足的问题，并得出建构具执行效力机制的必要性，以及对如何建构此种执行效力机制的路径选择进行了讨论。 第三部分则主要是对德国、我国台湾地区行政合同中自愿接受执行机制的考察及对我国的启示。在比较法观察下，介绍了德国、我国台湾地区行政合同法制中自愿接受执行的制度规范。并对从制度规范层面，从自愿接受执行机制的制度基础、定位、强制执行程序三方面进行了评述。由此得出结论：我国征收补偿协议与德国、我国台湾地区行政合同具有相似制度基础，引入自愿接受执行机制具借鉴可能。 第四部分是全文的结论部分。针对征收补偿协议履行机制不足的问题，如何借鉴德国、我国台湾地区行政合同中自愿接受执行机制对其完善进行了论证。主要阐述了征收补偿协议中如何确立自愿接受执行机制，以及确立后的设定程序及执行程序三方面内容。
[Abstract]:The regulation of expropriation and compensation has changed greatly in nature and function, but it has not adjusted the performance mechanism accordingly. As the expropriation and compensation agreement of the administrative contract, the regulations do not stipulate the applicable space of the privilege of the administrative contract in the course of its performance, but only stipulate the path of judicial litigation for the dispute settlement when the administrative contract is not performed. When the expropriated person fails to perform, the house expropriation department lacks other effective ways to promote the performance of the relocation obligation. This is not in line with the application of the levy compensation agreement to seek the cooperation of the expropriated person and to achieve the task of moving quickly. As a result, the regulations have deficiencies in the design of the performance mechanism of expropriation and compensation agreements. Thus, the expropriation of compensation agreements, a flexible administrative approach based on negotiation, while increasing the acceptability and participation of the expropriated persons, while avoiding lengthy judicial proceedings when the agreement is not fulfilled, We should construct a kind of enforcement mechanism to realize the purpose of contract quickly. Based on the analysis of the defects of the performance mechanism of the expropriation and compensation agreement and the theoretical reflection on the enforcement effect, this paper concludes that the perfection of the enforcement effectiveness of the expropriation and compensation agreement can be based on the comparative study of the legal system in Germany and Taiwan. The paper is divided into four parts: the first part is the argumentation basis of the full text, which discusses the changes and existing problems of the performance mechanism of the expropriation and compensation agreement in the system norms. Firstly, based on the normative analysis of Article 25 of the expropriation and compensation regulations, the change of the nature and function of the expropriation and compensation Agreement is obtained. Secondly, it discusses the theoretical reflection of this change in the context of administrative contract. Then leads to the performance mechanism did not make corresponding adjustments to the existing institutional dilemma. The second part starts with the nature and function of the expropriation compensation agreement, that is, the substitution relationship between the expropriation compensation agreement and the expropriation compensation decision. This paper mainly analyzes the conflict between the performance mechanism of the expropriation and compensation agreement litigation and the quick realization of the expropriation task by applying the contract, that is, the problem of insufficient enforcement effectiveness, and concludes that it is necessary to construct the enforcement effective mechanism. And how to construct the implementation effectiveness mechanism of the path choice is discussed. The third part is mainly to Germany, our country Taiwan area administrative contract voluntarily accepts the execution mechanism inspection and the enlightenment to our country. Based on the comparative law, this paper introduces the system of voluntary acceptance of execution in the administrative contract system of Germany and Taiwan. It also comments on the institutional basis, orientation and enforcement procedure of voluntary acceptance of enforcement mechanism from the level of institutional norms. It is concluded that there is a similar institutional basis between the expropriation and compensation agreement of our country and that of Germany and Taiwan, so it is possible to introduce the mechanism of voluntary acceptance and enforcement. The fourth part is the conclusion of the full text. In order to solve the problem of inadequate performance mechanism of expropriation and compensation agreement, how to use Germany for reference and how to improve the implementation mechanism of voluntary acceptance in administrative contracts in Taiwan are demonstrated. This paper mainly expounds how to establish the mechanism of voluntary acceptance and enforcement in the levy and compensation agreement, as well as the establishment procedure and execution procedure after the establishment.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
本文编号：2414768
[Abstract]:The regulation of expropriation and compensation has changed greatly in nature and function, but it has not adjusted the performance mechanism accordingly. As the expropriation and compensation agreement of the administrative contract, the regulations do not stipulate the applicable space of the privilege of the administrative contract in the course of its performance, but only stipulate the path of judicial litigation for the dispute settlement when the administrative contract is not performed. When the expropriated person fails to perform, the house expropriation department lacks other effective ways to promote the performance of the relocation obligation. This is not in line with the application of the levy compensation agreement to seek the cooperation of the expropriated person and to achieve the task of moving quickly. As a result, the regulations have deficiencies in the design of the performance mechanism of expropriation and compensation agreements. Thus, the expropriation of compensation agreements, a flexible administrative approach based on negotiation, while increasing the acceptability and participation of the expropriated persons, while avoiding lengthy judicial proceedings when the agreement is not fulfilled, We should construct a kind of enforcement mechanism to realize the purpose of contract quickly. Based on the analysis of the defects of the performance mechanism of the expropriation and compensation agreement and the theoretical reflection on the enforcement effect, this paper concludes that the perfection of the enforcement effectiveness of the expropriation and compensation agreement can be based on the comparative study of the legal system in Germany and Taiwan. The paper is divided into four parts: the first part is the argumentation basis of the full text, which discusses the changes and existing problems of the performance mechanism of the expropriation and compensation agreement in the system norms. Firstly, based on the normative analysis of Article 25 of the expropriation and compensation regulations, the change of the nature and function of the expropriation and compensation Agreement is obtained. Secondly, it discusses the theoretical reflection of this change in the context of administrative contract. Then leads to the performance mechanism did not make corresponding adjustments to the existing institutional dilemma. The second part starts with the nature and function of the expropriation compensation agreement, that is, the substitution relationship between the expropriation compensation agreement and the expropriation compensation decision. This paper mainly analyzes the conflict between the performance mechanism of the expropriation and compensation agreement litigation and the quick realization of the expropriation task by applying the contract, that is, the problem of insufficient enforcement effectiveness, and concludes that it is necessary to construct the enforcement effective mechanism. And how to construct the implementation effectiveness mechanism of the path choice is discussed. The third part is mainly to Germany, our country Taiwan area administrative contract voluntarily accepts the execution mechanism inspection and the enlightenment to our country. Based on the comparative law, this paper introduces the system of voluntary acceptance of execution in the administrative contract system of Germany and Taiwan. It also comments on the institutional basis, orientation and enforcement procedure of voluntary acceptance of enforcement mechanism from the level of institutional norms. It is concluded that there is a similar institutional basis between the expropriation and compensation agreement of our country and that of Germany and Taiwan, so it is possible to introduce the mechanism of voluntary acceptance and enforcement. The fourth part is the conclusion of the full text. In order to solve the problem of inadequate performance mechanism of expropriation and compensation agreement, how to use Germany for reference and how to improve the implementation mechanism of voluntary acceptance in administrative contracts in Taiwan are demonstrated. This paper mainly expounds how to establish the mechanism of voluntary acceptance and enforcement in the levy and compensation agreement, as well as the establishment procedure and execution procedure after the establishment.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
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