On The Debt Of The Public Law

In recent years, it is widely concerned that administrative private law to represent theory and practice of modern public law.Moreover,this is also one of the true picture on debt of the public law.Through the investigation of the origin of public law and debt,we find that the history of the evolution of the relationship between public law and private law is exactly like the word trend that is“together for a long time to divide, long period of division”.And the prestation(behavior) is the the basic debt-related character which is a product of the entire civilization.It is so called debt of the public law that is the right and obligation to request a specific prestation occurred between a particular party on the public law. It is the components of debt of the public law that consists of the relation in public law, nature of prestation(behavior), the reason for the occurrence of statutory or consensus and relativization principle. The debt of the public law is the complex of power relation and debt relation.There is the “competition and cooperation”that is the delicate relationship between the debt of the public law and the traditional administrative law,the debt of the private law,right of claim in the public law,real right of the public law.When we interpret the empirical constitutional norms,democracy and rule of law and the principle of social state,we can find that although the constitution hasn’t clearly defined this system,it hasn’t forbid it either.Meanwhile,it also has legitimacy in the administrative law.There are many articles concerning to “the state and the society and the private”in our administrative law system.And the debt of the public law should be valid according to interpretation of the principle administration according to the law,cooperation administration and administrative legal nexus.In addition,the evolution of property law also shows that the debt of the public law can draw lessons from it and assimilates its mature norms and principle,for example the tax debt law can provide samples for the debt of the public law.Moreover the debt of the public law should be available in the light of the principle of freedom of contract and protection ofrights and interests and equity.Lastly,it still has its root in society from the perspective of the current social phenomenon,public governance and risk regulation.Even the debt of the public law is still an unfulfilled and a challenging topic.After reviewing theory and practice of the debt of the public law in civil law system and common law system,such as Germany, France,Japan, Taiwan Province of China,Britain and the United States,we can basically make the following judgment:debt can grown in the public law,the system of the debt in the public law is open and the debt in the public law around the world are different and consensus.There are many factors,such as the bondage of private law thinking,the personality of public law system and the trammels of the existing system, which are affecting the systematization construction of the debt in public law.Therefore,the basic system of the debt of the public law can be determined as debt of obligation and obligatio civilis,through the comprehensive analysis these influencing factors and combined with extraterritorial theory and practice. The public contract is the principle debt of obligation in the public law.The obligatio civilis mainly consists of the debt tort in public law,the debt spontaneous agency in public law,the debt unjust enrichment in public law and the debt general prestation in public law.And the debt general prestation act as “general type”in the obligatio civilis in public law.In modern society,contract governance that is regarded as one of the symbols of modern countries is highly praised by administrative practices around the world. The public contract is,with the public main body as the litigant,a kind of contract that has,changes or eliminates the legal nexus in public law.The legal characteristics of the public contract is acceptability,publicity and legality.It is possible to reconcile the principle administration according to the law with the freedom of contract.If we make a typed division by the parties involved in the public contract,we can divide the public contract into contract between the private and public main body,and contract between public main bodies.The debt tort in public law is established in the modern public law.The debt tort in public law should be defined as a kind of behavior that violates the rights or interests of other individuals,and an accountability behavior consistent with the elements of the offense based on the public law order. Generally speaking,when a behavior conformed to the following elements that is deserved constitutional elements,illegitimacy and imputability, the debt tort in public law is established. The basic functions of the debt tort in public law is corrective justice and the prevention of damage.We can divide the debt tort in public law into two types that is between the private and public main body mutual tort, and between public main bodies mutual tort,according to the parties involved in the debt tort in public law. Between the private and public main body mutual tort can also be classified into public main body to the private and the private to public main body implementation of the tort law.It is a world subject that, how to balance the interests of management side and the managed side after favorable managing other people’s affairs in the absence of legal obligation.And on the establishment of the debt spontaneous agency in public law can provide the best solution for this worldwide problem.The so-called the debt spontaneous agency in public law,refers to manage public-legal affairs for others’ interest in the case of lack of appointment and without obligation.The elements of the debt spontaneous agency in public law include to manage other people’s public-legal affairs,no legal or contractual obligation and with administrative means.Proper function and equitable function are major function for the debt spontaneous agency in public law. The debt spontaneous agency in public law can be reconciled with powers of statutory and legal reserves.In the view of the possibility of public-legal affairs already being eliminated or carried out by others,we can find that there are three models in the debt spontaneous agency in public law:the private manage public-legal affairs for public main body’s interest,the public main body manage public-legal affairs for private’s interest and public main body mutual manage public-legal affairs. In order to resolve the crisis of the validity of transfer goods,we are continuously reforming the theory and practice of public law.,in which the debt unjust enrichment in public law with leading administration legality and restorative justice is of increasing importance.The debt unjustified enrichment in public law is a kind of regime in public law that provides a kind of redress way to the damaged party in the process of property alteration lacking of legal reasons.And the standard of public law,property alteration and lack of legal reasons are the standard of distinguishing unjustified enrichment in public law. There is a profound legal theory basis for unjustified enrichment in public law in China. According to differentlystandard, we may classify the unjustified enrichment in public law.But on the basis of traditional classification that is right of claim, the unjustified enrichment in public law may be classified unjustified enrichment of the public main body, unjustified enrichment of the private and unjustified enrichment of the public main bodies that can be discovered in China. Meanwhile, the debt general prestation act as “general type”in the obligatio civilis in public law. In content administrative supply and the debt general prestation act in public law is a kind of subordination.What is so called the debt general prestation act in public law is that asking for the public main body or private make public action including conduct, act of ommission or toleration excluding administrative action in a sense of public law. In the legal relations of the debt general prestation act in public law,one party must be the public main body in form. In general, party concerned should apply as a principle, take implemented in accordance with the terms of the initiative as the exception principle in a regular start-up routine of the debt general prestation act in public law.It has a statutory nature that the legal relations of the debt general prestation act in public law is running.Diversity and flexibility are main features of the debt general prestation act in public law in form. In essence,the debt general prestation act in public law is one of the legal relations of the debt of the public law. In the view of behavioral process,it is the result of power function.In the light of the nature of rights and obligations, the debt general prestation act in public law integrates state and government obligations(or rights) and private rights(or obligations).And the debt general prestation act in public law also has been entirely legitimate in China.The debt general prestation act in public law can be divided into three main types:the public main body provides private for prestation,the private provides the public main body for prestation and one public main body provides others for prestation,according to parties involved in the debt general prestation act in public law.