Research On Claim Of Restitution Unjust Enrichment Of Administrative Subjects

With the rise of administrative payments,it is more and more common for relatives to obtain unjust enrichment from administrative subjects.However,the law does not clearly stipulate how administrative subjects can recover unjust enrichment.The lack of unjust enrichment in public law has brought about practical problems:the administrative subject lacks the legal basis when exercising the right to return improper profits,and can only apply the provisions of the improper profit of the civil law;it is difficult to find the standard when defining the scope of the return;when choosing the method of return Faced with a dilemma.If the administrative agency makes an administrative act that requires the relative to return,it is suspected of violating the administrative principles of law in the absence of legal authorization;if the administrative agency filed a civil lawsuit,it will be easily rejected by the court and the civil trial lacks legality review.problem.This forced us to carefully study the theoretical issues of the administrative subject's improper return of the right to request,to learn from the legal norms,theoretical research and judicial practice of countries and regions outside the region,to explore the internal mechanism,scope and implementation of the right to return the right of request Construct and improve the practice of feeding back.Improper gains in public law are aimed at correcting property changes in the field of public law without legal reasons.The constitutional protection of public property,the principle of administration according to law,the principle of prohibiting excess payment,etc.provide the legitimacy for the administrative subject to exercise the right of claim,and its theoretical basis also lays the foundation for the study of the scope and realization of the return.The exercise of rights by administrative organs needs to follow the principle of trust in the protection of interests and equitable jurisprudence,and protect the counterpart.We can learn from the unlawful profit provisions of the civil law,and set the return target of the right of return as the original benefit and gain more based on the original benefit.When defining the specific return range,we can distinguish according to the subjective state of the relative person.The additional interest is refunded together,and it cannot be blamed on the non-incremental interest of the counterpart.If the relative has reasonable trust,the protection principle of trust can be used as a defense.There is no need to apply analogy to the provisions of the civil law for the beneficiary to be exempted from the responsibility of return,because this provision is in conflict with the existing value judgment of the public law,and the right to return is not only an administrative subject.Rights are also their obligations and cannot be waived at will.There are disputes over the way in which the administrative subject exercises the right of request for restitution in Germany and Taiwan,and the focus is on making administrative actions to request restitution or initiating general payment litigation.Based on the consideration of administrative efficiency and the requirements of administrative functions,the most effective administrative behavior should be the first choice,taking into account the extraterritorial experience and the actual situation in China,for the improper existence of legal authorization,which can be based on"negative theory" or the two parties are in a special power relationship.In the case of profit,the administrative subject may request the return of the counterpart in the form of administrative action.Administrative disputes can be resolved through judicial channels for unjust enrichment disputes that cannot be performed administratively or are difficult to resolve by administrative means.At this stage,the application of civil litigation to resolve disputes is of certain value and rationality,but there are still problems such as easy prosecution by the court and difficulty in matching civil courts with administrative disputes.In essence,choosing a civil lawsuit is only a flaw in the public law remedy model.A compromise to reality ultimately requires the establishment of a reverse litigation system to include unjust enrichment disputes in the scope of administrative litigation.Under the trend of affirmative administration,the reverse litigation system has the theoretical basis and extraterritorial experience.In special fields such as administrative debt and administrative agreements,giving prosecution power to administrative agencies is conducive to improving the lag of judicial relief and protecting the rights and interests of relatives.