Font Size: a A A

Emergency Response Study Of The Rule Of Law

Posted on:2007-01-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y ZhaoFull Text:PDF
GTID:1116360182491364Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The law of handing emergencies combines the extraordinariness ofemergencies and the nature of law. The law of handing emergencies isbased on the relation of the country (government) and the society (citizen)and focuses on the reset of their rights (powers) and obligations. The lawof handing emergencies must eliminate two dangers: the danger ofemergency itself and the danger of the abuse of emergency powers. Thelaw of handing emergencies is coexistent and interdependent with thenormal law. Going round this central idea, this paper gives amacroanalysis on the fundamentals and main institutions of the law ofhanding emergencies on the view of constitutional and administrativejurisprudence. The paper is divided into five parts.The first chapter discusses the relation as well as its variancebetween emergency measures and law. The extraordinariness of the lawof handing emergencies is due to the extraordinariness of emergencies.Hence the normal law can't be used to deal with emergencies. It is verynecessary and important to distinguish the law of handing emergenciesand the normal law. The ideal state of law of handing emergencies lies inthe integrating of extraordinariness of emergencies and the nature of law.However, the relation between emergency measures and law ,which hadbeen so strained, is getting relaxed gradually. One reason lies in thevariance of the state and scope of emergencies itself which brings on thedevelopment of the scope, mechanism and mode of emergenciesdisposition. Then the law becomes more efficient and orderly measure todealing with emergencies and it is necessary that the emergencies powersare exercised in legal system. Another reason for that is the improvementof the pattern and idea of the law. Although both the classical natural lawand formal law have some reasonable factors and positive affect onemergencies disposition, their inherent limitation can't relax the tensionalrelation between emergency measures and law. Only the substantive law,which is based on the former two kinds of law, makes the emergencymeasures correspond to the law.The second chapter talks about the role of governments duringemergency disposition. Governments should play a leading and positiverole because of public of emergencies, characteristic of their mechanism,mergence of emergencies disposition and service administration and thespread of emergencies responsing mechanism. According to role ofgovernments, they are authorized extensive and special emergenciespowers by law, mostly including emergencies decision, emergencieslegislation and emergency disposition. These powers as well as theirexercise reflect both the extraordinariness of emergencies and the natureof law.The third part explains the role of the society and citizens duringemergency disposition. The rule of law pursues the good andinterdependent relation between government and the society as well ascitizens. Social organs and citizens should be not only regulated,safeguarded or relieved by governments, but also participants andsupervisors. The social emergencies powers and governmental powersshould constitute a pluralistic emergencies mechanism. On the other hand,social organs and citizens should assume more obligations and their rightsmay suffer more restriction or derogation than usual. But the law ofhandling emergencies must eliminate two dangers: the danger ofemergency itself and the danger of the abuse of emergency powers. As tothe latter, the law would ensure the minimum human rights and restrictthe right restriction. Moreover, the protection of human rights becomes animportant subject in the international law.The fourth chapter analyses the arbitration and relief mechanism foremergency disputes. The arbitration and relief mechanism is not only apart of law but also factual guarantee of law. Generally speaking, thoseusual relieves can be applied to emergencies disputes. The negative orpassive character of the judicial power can't make it play a direct role indealing with emergencies. But it shouldn't be ignored because of it'sfunction on protecting human rights. Emergencies administrativelitigation has particularities in scope, qualification of plaintiff, standard ofproof, stay the execution or not, types and judgements. Administrativeindemnity and compensation mean governmental legal liability for theemergencies management and it is gradually enlarging.The last chapter is the improvement of the law of handlingemergencies in our country. We should follow the global direction of ruleof law on responding emergencies, at mean time we should basedourselves on the condition of our country. A series of emergencies legalsystems is the foundation to our emergencies law. Now, making a unitelaw is at the top of the agenda, the object of which is that considerationmust be given to both efficiency and right protection. The legislativeprinciples of that may be the principle of rule of law, the principle ofefficiency and the principle of protection of rights. But the principle ofemergencies shouldn't be one of our legislative principles.
Keywords/Search Tags:handling emergencies, rule of law, emergency powers, protection of human rights
PDF Full Text Request
Related items