To Clear the Clouds above the Performance on Behalf of the Party Concerned: Criterions of Identification, Scope of Application, and Collection of Charges ——Focus on the Law Enforcement in Urban Management
- 2017年第一卷 
【中文摘要】作为间接行政强制执行的代履行，在行政强制的序列中有着广阔的应用前景。《行政强 制法》一节三条文的内容似乎畅通了代履行的适用，但在地方立法和执法层面，却并非如此。行政机关 代履行与直接强制相混同、代履行适用范围的限制、代履行费用难以收取，仍制约着代履行效能的发挥。 代履行与直接强制执行的区分，可以遵循是否符合代履行基本特征、执行方式是否与代履行决定相同、 当事人是否违法等步骤依次判断。代履行的适用范围应当扩展，不应局限于交通安全、环境污染防治和 自然资源保护三个领域。强制拆除作也可以适用代履行。代履行费用应以事前征收为原则，执法机关须 明示费用的大概数额，并具备强制征收费用的手段，以督促当事人自行履行。 【Abstract】As a kind of administrative indirect enforcement, performance on behalf of the party concerned faces broad prospects in the sequence of administrative enforcement. It seems that the application of performance on behalf of the party concerned is unimpeded with the three articles in the Administrative Compulsory Law, however, it is not the case at the local legislation and law enforcement level. Performance on behalf of the party concerned is confused with direct enforcement, and the implication scope is restricted, as well as the charge is difficult to collect, have been limiting the application of it. To distinguish performance on behalf of the party concerned from direct enforcement, the standards listed below might be adopted step by step: first, whether an executive measure comply with the essential characteristics of the performance on behalf of the party concerned, whether the mode of execution is identical with the performance on behalf of the party concerned, whether the party concerned violate the law. The scope of the application of performance on behalf of the party concerned should be enlarged rather than be restricted to the territories of traffic safety, prevention of environmental pollution, and conservation of natural resources. Compulsory demolition of constructions may also apply performance on behalf of the party concerned. The charge of performance on behalf of the party concerned should be collected beforehand in principle. Law enforcement authorities should express the approximate amount of the cost, and should be equipped with the means of compulsory collection in order to urge the parties to fulfill the obligations.