美国作业代写：Administrative compensation Litigation

下面为大家整理一篇优秀的essay代写范文- Administrative compensation Litigation，供大家参考学习，这篇论文讨论了行政赔偿诉讼。国家对行政行为侵权承担责任是因为公权力侵权。公私法的分野导致限制国家权力、规范其运行成为维护社会正义的核心内容。行政赔偿诉讼应是受害人通过司法机关让国家机关对自己的行政行为所造成的损害进行赔偿的诉讼，是公权力致害的损害赔偿诉讼。

The state is responsible for the infringement of administrative acts because of the infringement of public power. The dividing line of public and private law leads to restricting state power and standardizing its operation to be the core content of maintaining social justice. The administrative compensation lawsuit should be the lawsuit that the victim compensation for the damage caused by the State organs through the judicial organ, which is the damage compensation lawsuit caused by the public power. From the basic procedural principles of the National compensation law of our country, such as the burden of proof, the punishment of the Right of compensation, It also shows that it differs from the characteristics of criminal procedure and administrative lawsuit. Therefore, the essential attribute of administrative compensation lawsuit should be the civil liability of the state. Only in this way can we stand at a higher starting point to examine the nature of the administrative compensation lawsuit in our country, find out the insufficiency and put forward the direction of perfecting the administrative compensation lawsuit.

Judging from the burden of proof, in criminal proceedings, the plaintiff accuses the defendant of being guilty, the plaintiff bears the burden of proving that the defendant has no proof of his guilt; in a civil lawsuit, who advocates the burden of proof; In the administrative lawsuit, the plaintiff instituted the administrative decision to violate the law, whether the true illegality by the lost proof responsibility. And the administrative compensation lawsuit? Under the provisions of articles 15th and 26th of the National Compensation Act, the general principle is who advocates the burden of proof, but in exceptional circumstances, that is, when the plaintiff is in the custody of the accused person, in detention, and so on, while being incapacitated or deprived of his right to life, The defendant shall be responsible for the absence of any link between his regulatory actions and injuries.

Judging from the disposition of rights, in criminal proceedings, the conviction and sentencing is the public power of the state, the court in criminal proceedings can not be resolved by means of mediation; in civil lawsuit, the civil rights and obligations uphold the attribute of the private right, and the court mediation is one of the important principles of civil trial. In administrative litigation, The state administrative power adheres to the attribute of the public power of the state, and the court shall not settle the case by means of conciliation. And the administrative compensation lawsuit? The State compensation law does not stipulate, but article 30th of the Supreme People's Court's provisions on the trial of several issues concerning administrative compensation cases expressly stipulates that: "The people's courts shall mediate the scope of compensation, the way of compensation and the amount of compensation under the precondition of insisting on lawful and voluntary cases." "Accordingly, it should be concluded that the question of the qualitative nature of compensation is not applicable to conciliation." So we need to further ask: first, why the question of qualitative compensation can not be reconciled? It is the axiom of damage that there is compensation that makes the case for a claim to be compensated for itself, thus eliminating the need to mediate compensation. Or is the qualitative of the compensation for the public power not appropriate for both sides to punish? Second, the nature of public power is different from that of private rights. Conciliation requires mutual concessions from both parties, but the exercise of public power represents a public interest, while private rights represent the interests of only one person or part of a person, in which case it is obvious that the public interest is compromised if the demand for public power is compromised. According to the theory of fair burden, the concession of public power is obviously incompatible with social justice. So what is the jurisprudence behind the mediation? Third, in accordance with the provisions of the National Compensation Act, compensation may be obtained in accordance with this law, and the scope, standard and manner of compensation and the payment are clearly defined, the scope of compensation and the ultra-standard compensation is illegal. So what is the meaning of conciliation for the victim? How much space is there in mediation? Therefore, the right disposition space in the administrative compensation lawsuit is very limited, so the nature of the administrative lawsuit is more obvious.

So, the essential attribute of administrative compensation lawsuit is administrative lawsuit or civil lawsuit? This is a question worth exploring.

By the state public power through the proof process, unifies the law application to determine the legal nature of certain behavior, then determines the perpetrator to be responsible for the legal liability, this is the various lawsuit common essential attribute. The civil lawsuit is to carry on the legal appraisal to the civil behavior, then carries on the civil responsibility to the illegal person; The criminal prosecution is to determine whether the behavior constitutes the crime according to the degree of personal behavior endangering the society, then carries on the criminal responsibility to the criminal behavior. But the administrative lawsuit has its particularity: the administrative lawsuit mainly lies in the administrative main body concrete administrative behavior

This paper uses Prof. Jianmiao's viewpoint to use "concrete administrative action" and "administrative decision" as the same concept. Judicial review is to determine the legality of administrative decisions made by the administrative subjects, but it is not limited to this, there are some types of administrative litigation decisions to change the original administrative decision or to require the administrative body to redo administrative decisions. Does this mean that the Court has decided that the illegal person bears the legal responsibility of the administrative illegality? With regard to legal liability, it is "a special obligation to compensate, compensate or receive punishment for damages arising from a particular legal fact". and the administrative legal liability is "due to violate the administrative law or due to the legal provisions of the subject matter should be borne by the statutory adverse consequences." The court decision ordered the administrative subject to make administrative decision or directly change the administrative subject's original administrative decision, when it belongs to the original administrative subject to bear the adverse consequences. Therefore, the type of judgment should be a kind of administrative legal responsibility that the original administrative subject undertakes. The particularity of the administrative lawsuit is also reflected in the confirmation judgment, but the general confirmation that the decision of the administrative decisions is illegal does not actually determine the administrative legal liability of any substance of the administrative subject, nor the special obligation of the administrative subject "to compensate, compensate or accept the punishment". In the case of civil litigation or criminal procedure, the administrative lawsuit is very different in that it often confirms the illegality and takes the civil liability or criminal liability of the main actor. Under the guidance of the Law of Natural justice, which has the necessary relief, we should design a mechanism to hold the responsibility of the Administrative Illegal Act. Therefore, the administrative compensation lawsuit arises.

From the origin of the procedure Law, the Blange case has prompted the French conflict court to establish three principles: the fault of civil servants is the responsibility of the State, and the rules of administrative responsibility should be independent and distinct from the civil law, and the solution of these problems should be within the jurisdiction of the Administrative Court. After each country has established the administrative compensation system, but not only the two legal system's administrative compensation lawsuit is different, even if the same as the civil law system countries in the administrative compensation lawsuit also has the different stipulation. Prof. Chen that "administrative compensation" refers to the responsibility of State functionaries to compensate for losses when their rights and interests are violated, and the principle of the State under the rule of law must be borne by the state that is the "employer" of the state staff. "In fact, many countries in the early years of the development of administrative law, the civil law employers to bear the tort liability of their employees, the administrative compensation liability included in the civil tort and liability part, such as Germany's Civil Code article No. 839." The Anglo-American law countries have always insisted on the infringement of the State organs and their staff as civil infringement, and apply the same procedure as the general civil tort. "In English law, the responsibility of kings and other public authorities is generally accepted, and citizens can sue them for damages caused by tort or contract," the British scholar himself said. In addition, as a general rule, the public authorities and the private sector apply the same tort law or contract law. Article 4th of the National Compensation Act of Japan expressly stipulates that liability for damages in respect of a state or public body shall, in addition to the provisions of the first 3 articles of the Act, also apply to the Civil Code. From the view of the entity stipulation of administrative compensation responsibility, the Tort of Administrative act is considered as a special tort of civil tort, and then the administrative compensation law is applied as a special law of civil law.

Unlike the capitalist legal system, article 121th of the general principles of Civil Law stipulates the tort liability of State organs and their staff, but in 1995 the National Compensation Act, which was introduced in 2010 and amended in China, does not provide for "the application of civil law" in the same way as article 4th of the National Compensation Act of Japan. Therefore, it is necessary to clarify the relationship between China's national compensation Law and article 121th of the general principles of civil law in the application of law.

From the provisions of the current state Compensation Act, the administrative compensation aspect not only stipulates the compensation which the specific administrative action violates the law, but also contains the compensation of the damage caused by the Administrative Factual Act which the administrative lawsuit refuses to accept; from the standard of compensation, the State Compensation law stipulates that only the damage to personal rights and property right should be liable for compensation, and damage to property rights is limited to direct losses. If the administrative compensation lawsuit is located in the civil lawsuit, the administrative action subject of decree infringement undertakes civil liability, and the existing State compensation law of our country obviously still has further perfect space; If the administrative compensation lawsuit is located in the special public power action damages, we will examine the current The achievements and deficiencies of the law of State compensation; If the administrative compensation lawsuit is located in the special lawsuit of the nature of pure public law, the State Compensation law itself stipulates how to compensate and what is existing is reasonable, then there is no need to discuss the deficiency of the current state compensation law. Therefore, it is necessary to probe into the essential attribute of administrative compensation lawsuit in order to promote the great cause of the rule of law.

First, the nature of interest determines the division of public and private law.

The Division of Public and private law appeared long before Cicero. "Private law is one thing, and public law is another," he said. "The former refers to common laws, Senate resolutions and covenants, which are private deeds, agreements, and the like." "At present, the public-private law is generally accepted by the academia as the following:" Some benefit the Urbian, while others benefit the private. Public law is seen in religious affairs, religious institutions and state-run institutions. Justinian presided over the codification of the general law, said: "Legal learning is divided into two parts, public law and private law." Public law involves the Government of the Roman Empire, and private law involves personal interests. "He presided over the compilation of the doctrine," said: "The norms of public law must not be the agreement between the parties to change, and the private law is arbitrary, to the parties, the agreement is the law." "By the writings of the above-mentioned ancient Rome, the law regulating private interests is private law, and the law regulating the public interest and regulating the relationship between the state and the private sector is public law." The rise of interest to the height of legal protection becomes a right. It can be concluded that private law is the norm and protection of private rights, public law is the regulation of public power and the relationship between public and private right. The interests of private rights can be dealt with by the parties agreement, and the public interest in public power is not subject to the agreement between the State organs and the relative. In different times and different countries, the scope of private interest and public welfare is different, and the standard scope of private law and public law is different. But there is no change in the standard of public-private law. In the scope of public law, it is the principle of violating the law and taking the legal responsibility to exclude or give the autonomy of private rights a limited scope, while pursuing the act of public power should be based on or in accordance with the public interest. Within the scope of private law, as long as the subject of private rights does not violate the prohibition of law, its behavior is free, and the disposition of the right is also by the party autonomy, does not need the law basis, also does not need to promote the public interest as the standard.

The core value of public-private Law division lies in the demarcation of private right, and public law should respect "autonomy of private law". This is of great practical significance to the construction of the rule of law in China at present.

Secondly, upholding the private right and strictly observing the boundary of public power is the inevitable requirement of social justice.

According to Aristotle's argument, justice is divided into distributive justice and correction justice. Certain national areas of social resources are limited, distributive justice involves wealth, honor, rights and other valuable things distribution, also known as the original distribution, in this field, to the same people to treat, different people give different treatment, is justice. Corrective justice involves recovery and compensation for infringement of wealth, honour and rights. In this field, it is justice for the victim to receive compensation from the perpetrator, which is unjust if the perpetrator is able to benefit from his own violations or to bear no loss. This classification has a profound impact on future generations. The justice here is defined from the basic structure of society, that is, social justice, in the various definitions of justice, it is the first justice. Why the hare on the prairie, people race to chase, the first person to occupy first, the market for the sale of rabbits, only to pay the satisfaction of the seller to obtain the price of gold? It is because of the ownership of the property. To give enough power to take possession of the unowned, and the individual to hunt by his own ability. The ownership of the hare is obtained by this fair law, and the original acquisition of this property embodies the distributive justice. If someone ignores the fact that the ownership already exists, the right to snatch the rabbit from the seller undermines the distributive justice because he infringes the property rights of the seller. In this respect, the public power should preside over justice and declare the infringement of the property rights of others illegal, in order to embody the distributive order of social justice, meanwhile, the infringer should be ordered to return the property and give administrative punishment to embody the social correction justice.

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