“私代履行人”的理论定位及规范建议

Theoretical Positioning and Regulation Suggestion for ‘Private-Party Performing on Behalf of the Party Concerned’

虽然《行政强制法》规定行政强制措施权不得委托给私人,但是在代履行中,却存在着"私代履行人"参与公法任务的空间。"私代履行人"理应被定位为行政助手。然而,作为公私协力的模式之一,行政助手理论制度存在一系列争议,需要对委托机关与"私代履行人"的法律关系性质、"私代履行人"的代理权行使及其侵权的行政救济等问题消除歧见。在此基础上,对"私代履行人"的条件、职责、权利义务、诉讼途径及法律责任等进行规范建议。

Although administrative compulsive power is permitted not to be entrusted to the private- party by the Administrative Compulsion Law, there still exists room for ＇private-party performing on behalf of the party concerned＇ to take part in public law tasks in performing on behalf of the party concerned. Such private-party should be positioned as administrative assistant. However, as one mode of the public-private partnership, there is a series of disputes in administrative assistant theoretical system, i.e. differences existing in the nature of the legal relationship between the entrusting organ and the private-party, the private-parts agent right execution and its infringement administrative remedy need to be eliminated. On this basis, regulation suggestions on the qualification, duty, rights and obligations, litigation methods and legal responsibilities of the ＇private-party performing on behalf of the party concerned＇ are given.