Research On The System Of Administrative Compensation

In our country, the administrative law circles have already studied Administrative Indemnity System extensively and profoundly and a special law --The State Indemnity Law has also been promulgated. While with respecting to the Administrative Compensation System we have not paid sufficient attentions to it even nowadays, and there is not a unified law in this field up to now. The current Administrative Compensation System has not only been far away from meeting the reality of administrative management activity, but also conflicted with the development of the democratic legal system of our country. In this case, it has already been an important subject of administrative legal construction that how to establish and perfect the Administrative Compensation System through deeply researching into the Administrative Compensation System theory. By analyzing the fundamental theories of the Administrative Compensation System and referring to the institutions in France, Germany, Japan, the U.S.A and the U.K, this article puts forward some tentative plans and ideas on how to perfect the Administrative Compensation System in our country. This article is divided into four chapters: Chapter One is the outline of the administrative compensation system. At first, the thesis introduces the definition of the administrative compensation. Comparing with various kinds of conceptions of Administrative Compensation System, the author points out that the Administrative Compensation System is an legal institution which is to offset the damage when the legitimate rights and interests of the citizens and the organizations suffer special losses, this special loses is caused by the legal power which belongs to the administrative organ who performs this power for the public interests. In the next part, the author analyzes the nature of the administrative compensation. After criticizing the Administrative Responsibility Theory, The Special Administrative Responsibility Theory, The Legal Responsibility Theory and The Remedial Administrative Responsibility Theory, the author summarized that the Administrative Compensation is a legal active obligation, which is necessary complied with the legitimate act. Obviously, the administrative body should exercise power in the name of the public interests. The author generalizes the characteristic of the administrative compensation based on the definition and the nature that analyzed above. It mainly has the following points: (1) the reason of the administrative compensation should be lawful. (2) the administrative compensation should aim at offsetting the special lost of the citizens and the organizations. (3) the administrative compensation must base on the actual lost and there must have the causality between the lost and the act which performed legally by the administrative body. (4) the administrative bodies are the respondent organizations . (5) the administrative compensation has various patterns. For the theoretical foundation of the administrative compensation system, the article points out that there are some defects in the doctrines of foreign countries, such as The Favored Theory, The Rested Rights Theory and The Social Duties Theory. It is more suitable to combine The Special Sacrifice Theory and The Public Fair Burden Theory as the foundation of the administrative compensation system. In the last part of this chapter, the author points out the distinction between the Administrative Compensation and the related conceptions. Firstly, administrative compensation is different from administrative indemnity in causation, time, patter and recourse right. Secondly administrative compensation is also different with administrative remedy in subject, target and the reason of the two. Chapter two is the brief introduction of the Administrative Compensation System in foreign countries.Firstly, the thesis introduces the Administrative Compensation System in France. France is the first nation to set up the Administrative Compensation System in the world. It has already provided the administrative compensation provision in the French Declaration of 1789. And besides the written law, the general principle of France can also become the legal basis in the administrative compensation. The scope of the French Administrative Compensation System mainly includes the compensation of requisition in collecting for the public interests, and it should be the direct, substantial and tangible lost. The procedure of the French administrative compensation is scientific and complete. It mainly includes such proceedings: confirm the obliges, negotiate the amount of money, court trial, the judgment; refuse to obey the appeal that is adjudicated in the first instance; pay off the compensation payment and require the occupation. Secondly, the thesis introduces the Administrative Compensation System in Germany. This system in Germany is linked to and expanded constantly with the enlargement of the range of utility expropriate closely. Weimar Constitutions of Germany and Basic Law in Germany have both stipulated the administrative compensation system. The administration compensation principle in Germany evolves from complete compensation to proper compensation and fair compensation. Present fair compensation is the complete compensation in fact. The scope of the administration compensation is extensively, it mainly includes expropriation compensation, quasi-expropriation compensation, special burden compensation and expropriation infringement compensation. Thirdly, the thesis introduces the Administrative Compensation System in Japan. It has stipulated the administration compensation clause in Japanese Land Law in 1901 and also in Japanese Constitution of 1946. The principle of the Japanese administration compensation is Just Compensation Principle, and it can be interpreted as complete compensation in both practice and theory.The fourth part of this chapter is the Administration Compensation System in the U.S.A. The U.S.A stipulated the administrative compensation provisions in the Constitutional Amendment in 1791, and then established the complete compensation principle in the decree of Northwest Region issued in 1987, this article introduces the scope of the American administration compensation in a reverse perspective. At last, the thesis introduces the Administration Compensation System in the U.K. The Administration Compensation System of the U.K develops relatively late, but comparatively complete now. It mainly includes three kinds: to remedy the deprive compensation of proprietary by force, the compensation caused by legal act and the compensation of selling by force. Chapter three is the development and defects of the Administrative Compensation System in China. The first part is the introduction of our country's Administration Compensation System in three stages: before the foundation of the People's Republic of China, between the foundation of the People's Republic of China and the opening-up stage, after the opening-up stage. In the second part the author analyzes the defects of the administration compensation system in our country, there are five following respects mainly: Firstly, The Constitution lacks the administration compensate regulation; Secondly, concrete regulations are disorder and there is not an unified Administrative Compensate Law up to now; Thirdly, the scope of compensation is obviously narrow. Fourthly, there is no concrete stipulation in the practical procedure. Fifthly, the absence of the relieve system. Chapter four is the perfection of the Administration Compensation. The author puts forward the way to perfect the administration compensation system in our country. Firstly, research into the current administration compensation system in our nation. Secondly, refer to the advanced systems in foreign countries. Thirdly, draw advanced experiences...