论我国行政赔偿程序的完善
发布时间：2018-08-12 17:52
【摘要】：国家赔偿的主要目的就是为了使国家对公民受到损害的合法权益能够得到合理有效的弥补,或者是对自己的错误行为承担一定的责任,更是对社会公平正义的一种维护。国家赔偿制度的设立是我国现代文明的里程碑,而国家赔偿法中有关/+赔偿数额,赔偿方式等规定的再好,如果没有相关的赔偿程序来予以监督执行的话,那么再好再科学的实体赔偿规定也终将难以实现其制度本身存有的初衷。所以在国家赔偿法中其赔偿程序至关重要,要实现受害公民的合法权益能真正得到赔偿就必须建立一套结构严谨,完整公正的赔偿程序规定。它有利提高社会和谐程度,有效化解社会矛盾。在我国国家赔偿程序中有行政赔偿程序和司法赔偿程序之分,文章中以行政赔偿程序为主要研究对象。我国现行行政赔偿程序虽然在2010年的《国家赔偿法》中作了进步性的修改,但由于我国作为一个轻程序重实体的国家,再加上对程序本身的研究时间较短,实际上行政赔偿程序的自身规定仍然存在一些缺陷。 行政赔偿程序是指行政赔偿请求人向行政赔偿义务机关请求行政赔偿,行政赔偿义务机关对赔偿请求进行审查并作出处理,以及行政复议机关或人民法院根据行政赔偿请求人的复议申请或起诉解决行政赔偿争议的方式、步骤、顺序和时限的总称。 全文从我国行政赔偿程序规定的特征,该程序在当前的实施现状,主要发达国家的相关规定,以及对我国行政赔偿程序规定的不足和修改建议等方面对其进行了系统性的论述。 文章的第一部分,主要对我国行政赔偿程序的概述。本章以程序为主要内容,从与程序相关的基本概念的阐述来说明程序的重要性,再对行政赔偿程序的概念进行阐述,以及行政赔偿程序与相关程序概念的区别和比较。 文章的第二部分,介绍主要发达国家的行政赔偿程序规定。通过对英国,美国,德国,法国的相关程序规定总结出各自的特点,并分别从这几个国家的先行处理程序和行政赔偿诉讼程序中总结出其对我国相关规定的借鉴。 文章的第三部分,介绍我国行政赔偿程序的主要内容,分别对先行处理程序,行政赔偿复议程序,行政赔偿诉讼程序做了阐述,其中以先行处理程序的内容介绍为主,最后对我国行政赔偿的特点做出总结。 文章的第四部分,指出我国目前行政赔偿程序的不足之处。在先行处理程序中的不足主要表现在请求人资格的确定,先行处理决定的法律效力缺乏规定,和对处理机关处理行为责任的规定等方面。在行政赔偿诉讼中存在的不足则表现在对受害人权利缺乏保护,诉讼效率比较低下。而在做出行政处理或判决后执行程序中的不足主要表现为对行政赔偿的 履行和执行程序的不足,还有行政追偿程序规定的过于简陋。 文章的第五部分,主要针对我国行政赔偿程序的不足之处提出相应的完善意见。分别针对第四部分中先行处理程序,行政赔偿诉讼程序和后续程序的不足提出相应的完善意见。在立法方面首先确定下了行政赔偿程序的立法原则,主要有保护私权原则,程序高效原则和程序公开原则。在先行处理程序中建议设立听证程序,增加对先行处理决定的行政复议,加强对先行处理程序办案人员的考评制度等。在行政赔偿诉讼程序中建议改进举证责任的分配,及诉讼中调解程序的启动权的分配。最后在行政追偿程序中对立案条件的设置,立案调查中建议设立听证制度和专门的调查小组等。
[Abstract]:The main purpose of state compensation is to make up for the damage to citizens'legitimate rights and interests reasonably and effectively, or to take some responsibility for their misconduct, but also to safeguard social fairness and justice. If there is no relevant compensation procedure to supervise and execute, then it will be difficult to realize the original intention of the system itself. Therefore, the compensation procedure in the state compensation law is very important to realize the legitimate rights and interests of the injured citizens. In order to get compensation, it is necessary to establish a set of strict, complete and fair compensation procedures. It is beneficial to improve social harmony and effectively resolve social contradictions. Although the compensation procedure has been revised progressively in the State Compensation Law in 2010, there are still some defects in the provisions of the administrative compensation procedure itself, because China is a country that attaches importance to the procedure and has a relatively short research time on the procedure itself.
The procedure of administrative compensation refers to the way, step, sequence and method by which the claimant of administrative compensation requests administrative compensation from the organ of administrative compensation obligation, the organ of administrative compensation obligation examines and deals with the claim for compensation, and the organ of administrative reconsideration or the people's court resolves the dispute of administrative compensation according to the application or suit of the claimant of administrative compensation. A general term for time limits.
This paper systematically discusses the characteristics of the administrative compensation procedure in China, the current implementation status of the procedure, the relevant provisions of the major developed countries, and the deficiencies of the provisions of the administrative compensation procedure in China and the suggestions for amendment.
The first part of the article mainly summarizes the administrative compensation procedure of our country.This chapter takes the procedure as the main content,explains the importance of the procedure from the elaboration of the basic concepts related to the procedure,expounds the concept of the administrative compensation procedure,and compares the difference between the administrative compensation procedure and the related procedural concepts.
The second part of the article introduces the administrative compensation procedures of the major developed countries. Through the relevant procedural provisions of the United Kingdom, the United States, Germany and France, summarize their respective characteristics, and from these countries'pre-processing procedures and administrative compensation proceedings summed up its reference to China's relevant provisions.
The third part of the article introduces the main contents of the administrative compensation procedure in our country, and expounds the advance processing procedure, the administrative compensation resumption procedure and the administrative compensation lawsuit procedure, in which the content of the advance processing procedure is mainly introduced, and finally summarizes the characteristics of the administrative compensation in our country.
The fourth part of the article points out the shortcomings of the administrative compensation procedure in our country. Lack of protection of the rights of the victim and inefficiency in litigation are the main deficiencies in the execution procedure after making administrative treatment or judgment.
Lack of performance and enforcement procedures, as well as the provisions of administrative recovery procedures are too crude.
In the fifth part of the article, the author puts forward some suggestions on the deficiencies of the administrative compensation procedure in our country. The principle of protecting private rights, the principle of procedural efficiency and the principle of procedural openness. In the prior processing procedure, it is suggested to set up the hearing procedure, increase the administrative reconsideration of the prior processing decision, and strengthen the evaluation system of the handling personnel of the prior processing procedure. Finally, in the procedure of administrative recourse, it is suggested to set up a hearing system and a special investigation team.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
，
本文编号：2179836
[Abstract]:The main purpose of state compensation is to make up for the damage to citizens'legitimate rights and interests reasonably and effectively, or to take some responsibility for their misconduct, but also to safeguard social fairness and justice. If there is no relevant compensation procedure to supervise and execute, then it will be difficult to realize the original intention of the system itself. Therefore, the compensation procedure in the state compensation law is very important to realize the legitimate rights and interests of the injured citizens. In order to get compensation, it is necessary to establish a set of strict, complete and fair compensation procedures. It is beneficial to improve social harmony and effectively resolve social contradictions. Although the compensation procedure has been revised progressively in the State Compensation Law in 2010, there are still some defects in the provisions of the administrative compensation procedure itself, because China is a country that attaches importance to the procedure and has a relatively short research time on the procedure itself.
The procedure of administrative compensation refers to the way, step, sequence and method by which the claimant of administrative compensation requests administrative compensation from the organ of administrative compensation obligation, the organ of administrative compensation obligation examines and deals with the claim for compensation, and the organ of administrative reconsideration or the people's court resolves the dispute of administrative compensation according to the application or suit of the claimant of administrative compensation. A general term for time limits.
This paper systematically discusses the characteristics of the administrative compensation procedure in China, the current implementation status of the procedure, the relevant provisions of the major developed countries, and the deficiencies of the provisions of the administrative compensation procedure in China and the suggestions for amendment.
The first part of the article mainly summarizes the administrative compensation procedure of our country.This chapter takes the procedure as the main content,explains the importance of the procedure from the elaboration of the basic concepts related to the procedure,expounds the concept of the administrative compensation procedure,and compares the difference between the administrative compensation procedure and the related procedural concepts.
The second part of the article introduces the administrative compensation procedures of the major developed countries. Through the relevant procedural provisions of the United Kingdom, the United States, Germany and France, summarize their respective characteristics, and from these countries'pre-processing procedures and administrative compensation proceedings summed up its reference to China's relevant provisions.
The third part of the article introduces the main contents of the administrative compensation procedure in our country, and expounds the advance processing procedure, the administrative compensation resumption procedure and the administrative compensation lawsuit procedure, in which the content of the advance processing procedure is mainly introduced, and finally summarizes the characteristics of the administrative compensation in our country.
The fourth part of the article points out the shortcomings of the administrative compensation procedure in our country. Lack of protection of the rights of the victim and inefficiency in litigation are the main deficiencies in the execution procedure after making administrative treatment or judgment.
Lack of performance and enforcement procedures, as well as the provisions of administrative recovery procedures are too crude.
In the fifth part of the article, the author puts forward some suggestions on the deficiencies of the administrative compensation procedure in our country. The principle of protecting private rights, the principle of procedural efficiency and the principle of procedural openness. In the prior processing procedure, it is suggested to set up the hearing procedure, increase the administrative reconsideration of the prior processing decision, and strengthen the evaluation system of the handling personnel of the prior processing procedure. Finally, in the procedure of administrative recourse, it is suggested to set up a hearing system and a special investigation team.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
，
本文编号：2179836
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