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Administrative Recovery System Research

Posted on:2012-01-26Degree:MasterType:Thesis
Country:ChinaCandidate:C WangFull Text:PDF
GTID:2246330395464211Subject:Constitution and Administrative Law
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Administrative recoupment also known as administrative claims administration is the administrative compensation system’s important component, is administrative compensation system development perfect one manifests importantly. On the one hand, the establishment of Administrative recoupment system may be able to strengthen the supervision of the national civil service, suppresses civil servants’illegal abuse of authority, urges civil servants’ correctly legitimately administrative duty. On the other hand, it may recover the partial national compensation expense, lightens the state finance burden. Therefore, the majority countries have determined administrative recoupment system as an important restitution of the State Law of Compensation, such as Germany, Austria, Japan and South Korea. Relevant laws in our country also have determined this system. However, due to late start of national law, in the design of the system is too principled, in practice does not have operationally. Moreover, scholars on this issue are also a lack of sufficient attention, particularly the procedure of administrative recoupment. Therefore, author studies this system through to the developed countries, to clarify the basic theory of administrative recoupment, and on this basis, analysis this system’s flaw, and proposed to the existing system’s perfect opinion by the massive lengths, specially the procedure of administrative recoupmen that has divided into the decision procedure, the executive routine, the relief procedure as well as the monitor program. Specifically, the article is divided into three parts:The first part:the basic theory of administrative recoupmen. Through to researching the concept of administrative recoupmen about territory inside and outside, combined with our country reality, has carried on accurate definition of administrative recoupmen and obtained the three constituent elements namely the compensation duty institution already fulfilled the compensation duty to the compensation request power person, to injure the behavior to have intentionally or the significant obsolete subjective mistake, to exercise the civil rights strength behavior to have the causal relation with the harm consequence. At the same time, this part analysis the nature of administrative recoupmen. Author suggests that administrative recoupmen is one kind of independent legal liability. The second part:administrative recoupmen system’s flaw about our country. At present, our country’s administrative recoupmen system’s flaw mainly displays in three aspeets: recoupmen amount is indefinite; recoupmen time is not clear; recoupmen procedure system is not perfect. Author proposes the procedure legal system should include the decision procedure, the executive routine, the relief procedure as well as the monitor program. Speaking of the administrative recoupmen of our country, unperfect procedure is the biggest bottleneck which this system carries out specifically.The third part:put forward the proposal to our country’s administrative recoupmen system. Through the basis of the first two parts, the author has carried on the ponder to our country’administrative recoupmen system’s consummation, believed that the administrative recoupmen is an ex post administrative responsibility, is a "property penalty", therefore, the definite amount of administrative recoupmen is very important. Determination of the recoupmen amount should follow four basic principles, namely, be consistent with human subjective fault:be limited to by the administrative compensation payment; be limited by the economy bearing capacity of the person who is claimed in the administrative compensation; recoupmen responsibility cannot substitute.Certainly, the administrative recoupmen is a kind of special tort, should also be clear about the time. I believe that the time is one year appropriately.In addition, the author elaborated the administrative recoupmen procedure consummation with the massive lengths. Administrative recoupment system in china has been out of order for a long period of time, mainly because we lack a set of sound recoupment program design in legislation. Not only is the improvement of recoupment procedure able to prevent the compensation organizations abuse of recoupment power effectively, but also to ensure fair and equitable treatment of substantive rights of the person who is claimed in the administrative compensation. Administrative recoupment decision-making procedure, the beginning of administrative recoupment, consists of register, investigation and verification of evidence, inform and defense, and realization and delivery of administrative recoupment design. The implementation of administrative recoupment includes automatic fulfillment and enforcement. The key of enforcement of administrative recoupment is clear enforcement body conditions and scope and the enforcement process and other issues. The relief procedure is different due to the relief way’s type including the appeal, reconsiders as well as the lawsuit. Monitor program refers to related supervisors based on the relevant law to supervise the whole process to be followed such as the principle,the step, the time and so on.
Keywords/Search Tags:administrative recoupment, recoupment award, recoupment time, recoupmentprocedure
PDF Full Text Request
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