公法不当得利之探析

Research on Unjust Enrichment in Public Law

无论是从概念、构成要件还是法理基础等方面来看,公法不当得利均具有与民法不当得利诸多类似之处。因此,在讨论公法不当得利制度时厘清两者间的关系及其差异就显得尤为重要。同时,返还范围与实现方式乃公法上不当得利的重要内容,将一般给付之诉引入目前的救济通道中,能够较好地解决仅以行政处分方式实现不当得利返还的单一局面。

Both from the concept, constitutive requirements or legal basis, public law unjust enrichment has many similarities with the unjust enrichment of civil law. When talking about the unjust enrichment in public law, therefore, clarify the relationship and differences between them are particularly important. At the same time, the scope and implementation are important content of unjust enrichment in public law, taking the general litigation of payment into current relief channels, can well solve the problems only to realize the returning of unjust enrichment through the single administrative punishment way.