行政补偿范围的经济分析  

An Economic Analysis on the Scope of Administrative Compensation

作　　者：金伟峰[1] 姜裕富 

机构地区：[1]浙江大学法学院,浙江杭州310028 [2]衢州行政学院,浙江衢州324002

出　　处：《浙江大学学报（人文社会科学版）》2006年第2期130-138,共9页Journal of Zhejiang University:Humanities and Social Sciences

基　　金：教育部人文社会科学研究"十五"规划项目(01JA820033)

摘　　要：财产征收、征用的行政补偿原则已经得到我国宪法的确认,但补偿的范围应该包括哪些行为和得到多大程度的补偿等具体问题则有待解决。运用经济分析方法,可以对行政补偿的范围作出更形象的解释。从行政主体对相对人侵权的原因来看,行政补偿应包括财产征用、特别限制、行政行为派生的效果等。确定行政补偿标准要兼顾到公共利益和私人利益最大化,即行政决策者必须充分考虑行政行为所产生的成本(个人成本和社会成本)与效益(个人效率和社会效率),促使行政主体将公益成本内在化。The principle that property collection and expropriation must be given compensation has been validated by the Chinese constitution. However, some concrete problems such as the range and degree of compensation are yet to resolve. Legal analysis, which undoubtedly can prove its legitimacy, cannot perfectly testify the rationality of collection and expropriation. As a means of restricting private property rights in the interest of the public, people＇s loss resulting from collection and expropriation is just the one which should be given compensation. Economic analysis has its particular advantages in calculating loss and other interrelated problems. Economists classify goods into private goods, public goods, and semi-public goods which have characteristics both of private and public ones. In the market economy, production and consumption of public and semi-public goods cannot be realized effectively. This situation provides a good reason for government intervention into market. In order to maximize public interests, administrative agencies restrict people＇s private property by means of collection and expropriation. Hence, it should take responsibility for people＇s loss. In the present society, property rights are not only one kind of rights, they also shoulder corresponding social responsibilities in order to meet public interest, which is at the same time the cost of exerting rights. Once such social responsibilities exceed ordinary limit, sacrifices of property will result. If not properly compensated, it will lead to social injustice. Typical cases include the expropriation of property, the special restriction on the exertion of property rights and the deriving effect of administrative action. The range of administrative compensation also relates to the degree of compensation, which involves the standard of compensation. Relative to ＂the wholly indemnity principle＂ of civil indemnity and ＂the impartial and rational indemnity principle＂ of administrative indemnity, the administrative compensatio

关 键 词：行政补偿 补偿范围 补偿标准 经济分析 

分 类 号：D922.11[政治法律—宪法学与行政法学]