行政即时强制补偿问题研究
发布时间：2018-08-13 16:18
【摘要】：《国家赔偿法》修改后赔偿方面的问题有所改进，较好地维护了公民的合法权益，但对于补偿问题，由于时机不成熟，并未做较大的改动。在实践中如何充分及时对公民进行补偿却是一个不可回避的问题。即时强制的行政补偿，是指行政主体在遇到违法犯罪或自然灾害、事故灾难、公共卫生事件或社会安全事件等危机时，行政主体为了维护社会公共利益和秩序，采取的合法即时行政强制行为对相对人的人身或财产造成特别损害时所承担的一种补偿责任。虽然即时强制行为本身是合法行政行为，其目的也是为了保护公众利益，但是基于公平正义原则，行政公权力主体也必须对此造成的损害负担补偿责任。本文围绕即时强制补偿问题从五方面进行了研究。 第一部分主要明晰行政即时强制的概念及对即时强制行政补偿的界定和类型划分。其中指出我国目前的立法中并无即时强制这一概念，仍停留于学理上的讨论。另外还介绍了大陆法系国家对即时强制的界定。 第二部分对即时强制行政补偿的正当性进行证成。从社会国与法治国理念、最低限度的人权保障原则、特别牺牲的公共负担平等承受理论及相关法律对公民特别损害的补偿规定这四个方面来证明对行政主体合法实施的即时强制行为给予相对人补偿的必要性。 第三部分阐述大陆法系几个典型国家针对即时强制行为的补偿立法规定。即德国的统一与单行法结合的即时强制的公平补偿；日本在单行法中规定的正当补偿；台湾地区在《行政执行法》中明确规定给予相对人的合理损害补偿。这些国家的立法实践对我国有重要的借鉴意义。 第四部分对我国即时强制补偿的法律规定进行梳理。存在的主要问题有实体方面缺乏起指导作用的基本原则、没有统一的行政补偿立法并且补偿救济制度不健全，在程序上没有标准的操作程序，，行政主体的裁量权力过大等。 第五部分探讨我国即时强制补偿的制度建构。即确立即时强制补偿的构成要件、在强制法中列明补偿条款、明确即时强制补偿的标准、范围、方式、程序以及完善救济途径。最后要保证即时强制补偿的政府信息公开，加强广泛监督，确保补偿得到真正统一贯彻执行，相对人合法权益得到有效弥补。
[Abstract]:After the amendment of the "State compensation Law", the problems of compensation have been improved, and the legitimate rights and interests of citizens have been better safeguarded, but the compensation problem has not been changed because the time is not ripe. In practice, how to make full and timely compensation to citizens is an unavoidable problem. Immediate compulsory administrative compensation refers to the administrative subject in order to safeguard the public interest and order in the event of a crisis, such as illegal crime or natural disaster, accident disaster, public health event or social security event. A liability for compensation when a lawful and immediate administrative coercive act causes special damage to the person or property of the relative party. Although the immediate compulsory act itself is a legal administrative act and its purpose is to protect the public interest, the subject of the administrative public power must also bear the compensation responsibility for the damage caused by it on the basis of the principle of fairness and justice. This paper focuses on the issue of immediate compulsory compensation from five aspects. The first part mainly clarifies the concept of immediate administrative compulsion and the definition and classification of immediate compulsory administrative compensation. It is pointed out that there is no immediate compulsion in our current legislation, and it still stays in the discussion of theory. In addition, it introduces the definition of immediate compulsion in civil law countries. The second part proves the legitimacy of immediate compulsory administrative compensation. From the social state and the concept of rule of law, the minimum principle of human rights protection, The special sacrifice of the public burden of equal bearing theory and the relevant laws of the compensation for special damage to citizens these four aspects to prove the legal implementation of the administrative body of the immediate compulsory acts of the opposite party to compensate the necessity. The third part describes the civil law system of several typical countries for immediate compulsory acts of compensation legislation provisions. That is, the unification of Germany and the combination of the single law of the immediate compulsory fair compensation; Japan in the sole law of the provisions of the just compensation; Taiwan in the "Administrative Enforcement Law" clearly stipulated to the opposite party reasonable compensation for damage. The legislative practice of these countries has important reference significance to our country. The fourth part combs the legal provisions of immediate compulsory compensation in our country. The main problems are the lack of basic guiding principles in the substantive aspect, the lack of uniform administrative compensation legislation and the imperfect compensation and relief system, the absence of standard operating procedures in the procedure, the excessive discretion of the administrative subject, etc. The fifth part discusses the system construction of immediate compulsory compensation in China. That is, to establish the constitutive elements of immediate compulsory compensation, to set out the compensation clause in the compulsory law, to clarify the standard, scope, method, procedure and perfect relief way of the immediate compulsory compensation. Finally, it is necessary to ensure that the government information of immediate compulsory compensation is made public, to strengthen extensive supervision, to ensure that the compensation is truly and uniformly implemented, and that the legitimate rights and interests of the counterpart are effectively compensated.
【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】：D922.1;D922.1
本文编号：2181520
[Abstract]:After the amendment of the "State compensation Law", the problems of compensation have been improved, and the legitimate rights and interests of citizens have been better safeguarded, but the compensation problem has not been changed because the time is not ripe. In practice, how to make full and timely compensation to citizens is an unavoidable problem. Immediate compulsory administrative compensation refers to the administrative subject in order to safeguard the public interest and order in the event of a crisis, such as illegal crime or natural disaster, accident disaster, public health event or social security event. A liability for compensation when a lawful and immediate administrative coercive act causes special damage to the person or property of the relative party. Although the immediate compulsory act itself is a legal administrative act and its purpose is to protect the public interest, the subject of the administrative public power must also bear the compensation responsibility for the damage caused by it on the basis of the principle of fairness and justice. This paper focuses on the issue of immediate compulsory compensation from five aspects. The first part mainly clarifies the concept of immediate administrative compulsion and the definition and classification of immediate compulsory administrative compensation. It is pointed out that there is no immediate compulsion in our current legislation, and it still stays in the discussion of theory. In addition, it introduces the definition of immediate compulsion in civil law countries. The second part proves the legitimacy of immediate compulsory administrative compensation. From the social state and the concept of rule of law, the minimum principle of human rights protection, The special sacrifice of the public burden of equal bearing theory and the relevant laws of the compensation for special damage to citizens these four aspects to prove the legal implementation of the administrative body of the immediate compulsory acts of the opposite party to compensate the necessity. The third part describes the civil law system of several typical countries for immediate compulsory acts of compensation legislation provisions. That is, the unification of Germany and the combination of the single law of the immediate compulsory fair compensation; Japan in the sole law of the provisions of the just compensation; Taiwan in the "Administrative Enforcement Law" clearly stipulated to the opposite party reasonable compensation for damage. The legislative practice of these countries has important reference significance to our country. The fourth part combs the legal provisions of immediate compulsory compensation in our country. The main problems are the lack of basic guiding principles in the substantive aspect, the lack of uniform administrative compensation legislation and the imperfect compensation and relief system, the absence of standard operating procedures in the procedure, the excessive discretion of the administrative subject, etc. The fifth part discusses the system construction of immediate compulsory compensation in China. That is, to establish the constitutive elements of immediate compulsory compensation, to set out the compensation clause in the compulsory law, to clarify the standard, scope, method, procedure and perfect relief way of the immediate compulsory compensation. Finally, it is necessary to ensure that the government information of immediate compulsory compensation is made public, to strengthen extensive supervision, to ensure that the compensation is truly and uniformly implemented, and that the legitimate rights and interests of the counterpart are effectively compensated.
【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】：D922.1;D922.1
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本文编号：2181520
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