论行政公益诉讼中不当得利的返还方式

On the Mode of Returning Unjustified Enrichment in Administrative Public Interest Litigation

行政公益诉讼中公法上不当得利返还请求时,存在集体运动的现象,即请求权主体和给付主体不对应,且多个主体。此外,追缴通知书还存在内容不明确、依据不明确等问题。追缴通知书在法律上该是何种性质的行为,即应以何种行政行为形式主张返还请求权?借鉴德国的"反面理论",以给付行政处理形式之源,导出请求权行政处理形式之流。即以行政处理的书面方式作出追缴通知。同时,以程序正义确保追缴通知的合法性。

In administrative public interest litigation, when the claim for return of unjustified enrichment is made in public law, there exists the phenomenon of collective movement, that is,the subject of claim and the subject of payment do not correspond to each other, and there is more than one subject. In addition, the notice of recovery has such problems as unclear content and unclear basis. We should make it clear what the nature of notice of recovery should be in law, that is, what form of administrative act should be used to claim the right of return. In this paper, the author draws lessons from Germany’s " negative theory" to derive the stream of administrative treatment forms of claims from the source of administrative treatment forms of payment. The notice of recovery shall be made in the written form of administrative treatment.Meanwhile, the legality of the notice of recovery shall be ensured by procedural justice.