The Power Of Administrative Organization On Restitution Of Unjust Enrichment

Abstract:As a kind of public law on the return of Unjust enrichment, the power of administrative organization on restitution of Unjust Enrichment is a right that administrative organization has asked the administrative relative person, or other improper administrative organization return the property which is changed without legal reasons in administrative law. In the era of the welfare state and pay administration increasingly prevalent, according to law principles, the principle of banned excess payment and service administration under the request of mutual trust and cooperation, administrative organization claims the Unjust enrichment to the other party, which is reasonable. When the administrative organizations claim Unjust enrichment to the administrative relative person, the specific scope of return can be reference on the application of the principles of protection and Unjust enrichment in civil law is distinguished malicious recipients from receiving person in good faith. When administrative relative person occupy some interests through active behavior of malicious cheating, it is whether belong to Unjust enrichment, which is a controversial issue. But there is no denying that the interests of administrative relative person malicious deception should be all returned, at the same time, any loss is supposed to compensate. For the realization of the return Unjust enrichment of administrative organization claiming, Germany and Taiwan believe that instituting legal proceedings and making administrative acts are proper ways, which make the illegal property state recovered to normal. In consideration of the practice of administrative law in our country, the plaintiff qualification of administrative organization are not reflected on the administrative procedure law, litigation types of unclear and payment of the lack of judgment also are Complex reality, which make generally pay litigation that the administrative subject as a plaintiff can’t put it into practice. Therefore, the way of returning Unjust enrichment of administrative subject can be divided into the following several cases as a reference:Firstly, when the law has a clear mandate, the administrative subject for returning Unjust enrichment should be directly in the form of administrative act; Secondly, when the law hasn’t a clear mandate, we should be in the hope of establishing administrative subject as the plaintiffs litigation mode commonly, as a means of moderate administrative subject to negotiate advice also can be used as a preposition; Thirdly, without a clear mandate in the law, the administrative behavior can still exercise when the right of return unjust enrichment claimed, including under the special power relation and the loss of the basis of payment under the two circumstances effective payment behavior. Of course, since administrative subject claim administrative relative person return Unjust enrichment, they also can adopt measures to urge the other party to return, for example, public receiving object, set warning clause, guide the public supervision and so on.