Font Size: a A A

From The Administrative Fees "paid" On The Administrative Charges Relative Rights And Interests Of Legal Protection

Posted on:2008-05-08Degree:MasterType:Thesis
Country:ChinaCandidate:X M CengFull Text:PDF
GTID:2206360215973111Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The phenomenon of administrative user charge's overabundance and random has already lasted long time in China since 20th century 80's. Central government and local govemment all have many ldnds of administrative user charge, specially the major part of the local govemment income's originates from the administrative user charge instead of tax revenue. Chinese common people always deep wicked "oppressive taxes", in Chinese history the main reason of many times of the peasant's uprising is that they can not withstand oppressive taxes. The question of chaotic administrative user charge has already let the common people seething popular discontent, therefore goveming the administrative user charge by law and protecting the administrative counterparts' rights and interests has became the most important question that is relating with our country's stabilization.This paper starts with a case of collecting"a charge of the parldng vehicle temporarily on public road" and educes the unfair phenomenon of that the counterpart's reasonable benefits can not obtain actually protection because the law and the government determine the nature of administrative user charge as "gratuitousness". To resolve this question, the author's opinion is that we should accept the international general theory of tax and charge, namely the tax is "gratuitous", but the charge is "nongratuitous". From this the paper enters the subject ---discussion on the legal protection of the administrative counterpart's rights and interests basing on the nature of "nongratuitousness" of administrative user charge.The first part of the paper is the basic theory of the nature of nongratuitousness of administrative user charge, and this part is divided into four sections. The first section is Chinese and west countries' different opinions about the nature of the administrative user charge. Chinese opinion is that the nature of administrative user charge is gratuitous, west countries' opinion is that the mature of administrative user charge is nongratuitous. The second section is the proof on the nature of nongratuitousness of administrative user charge. In this section, the author introduces "the theory of public products" which is the theoretic basis of west countries' administrative user charge, and illustrates the nature of "nongratuitouness" of administrative user charge. And further illustrates the necessity and rationality of administrative user charge's existence. The third section is the concept and scope of administrative user charge basing on the "nongratuitousness". The fourth section is the difference and sameness of civil transaction and administrative user charge's "nongratuitousness", it points out that the methods of protecting civil parties' fights and interests can be used in protecting the fights and interests of the counterpart in collecting administrative user charge.The second part of the paper is the rights of the counterpart's in nongratuitous administrative user charge. And this part is divided into two sections. The first section is the "creditor's rights" of the counterpart who has paid the administrative user charge. The author uses the concept of"creditor's right" in civil law, considers the relationship between the counterpart who has paid the administrative user charge and the administrative agencies as "debt". And the author analyzes the creditor's right's specific contents and effectiveness and the administrative agencies' burden in case of violating the "debt". The second section is the counterpart's right to resist to "gratuitous" administrative user charge. In this section, the author introduces the theory of invalidated administrative acts, and confirms the "gratuitous" administrative user charge as invalidated administrative act, and points out that the counterpart has the fight to resist to this ldnd of act. But the author also illustrates the limitation of the right to resist.The third part of the paper is the author's opinion on the system of protecting the counterpart's fights and interests in collecting administrative user charge". This part is divided into two sections. The first section is the principles of the law of administrative user charge. In this section, the author presents four principles to insure the nature of"nongratuitousness" of administrative user charge and protect the counterpart's fights and interests. The first principle is that the person that paies for the administrative user charge is the person benefits from the act. The second principle is nonprofit. The third principle is pro rata principle. The fourth principle is in favor of maintaining the order and protecting environment. The second section is the design of specific systems. In this section, the author divides the specific systems into the system of demonstrating beforehand, the system of insurance of the quality of the public product, and the system of supervising and relief after the events. Among these, the author emphasizes the system of demonstrating and the system of supervising and relief. The system of demonstrating beforehand are further divided into demonstrating on the nature of "nongratuitousness", demonstrating on the necessity and rationality and demonstrating on the price. About the system of supervising and relief, the author emphasizes the system of the counterpart's claim on compulsory enforcement and the system of relief to the counterpart's exercising the right to resist.
Keywords/Search Tags:administrative user charge, the nature of nongratuitousness, the rights and interests of the counterpart, legal protection
PDF Full Text Request
Related items