Research On The Enactment Right Of Compulsory Administrative Measure In The Local Regulations

On June30th,2011, the standing committee of the National People’s Congresspassed the administrative compulsion law. With the administrative punishment lawand administrative license law, they are called the "trilogy" in the history ofadministrative legislation. It’s the significant legislative achievements inadministrative legal system construction. Like the administrative punishments law andadministrative license law, administrative compulsion law in the form of discussedwith regulations established the system of compulsory administrative enactment right.According to the provisions of article10of administrative compulsion law, on the setof administrative compulsory measures, appropriate open to local rules andregulations, under the situation of not make laws, administrative regulations, belongto the local issues, local regulations can set compulsory administrative measures inparagraph2and3of article9.Administrative compulsion law makes the legal reserve principle more fully. Butwe need to discuss if the principle of law reserve is applicable to local legislation. Tellfrom the nature, local regulations are more similarities with laws than with theadministrative rules, the freedom of the local government should be much bigger thanthe administrative rules. In the absence of provisions in laws, administrative rules arenot able to do, but not completely can’t make a local rules and regulations. Andstarting from the reality, giving local regulations even greater administrative compulsory measures set space is necessary. If properly done, it will also enhance thevitality of national legal system and make legal system more organized and energetic.In view of China, the local laws are too various, so this article applies only to thecurrent189local regulations of the administrative enforcement measures in Shanghai,the article four chapters. The first chapter is the basic theory of administrativecompulsory measures enactment right in local regulations. The second chapter isabout the present situation of local regulations of administrative compulsory measuresenactment right legislation, on a number of specific administrative behavior propertiesdefined in the first place, and then is based on local regulations for the Shanghai localregulations involved in the compulsory administrative measure specific law anddetailed analysis of laws on the basis of administrative compulsion law. The thirdchapter summarized the problems existing in the local regulations of administrativecompulsory measures enactment right. The fourth chapter puts forward theimprovements of the local rules and regulations of administrative compulsorymeasures enactment right path, including clear legal provisions, clean up theadministrative compulsion law and decrees local rules and regulations.