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Research On Law Enforcement Power

Posted on:2008-01-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z H EFull Text:PDF
GTID:1116360212494813Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Since the country came into being, the law enforcement power, to which had been paid so much attention by the experts and scholars of law science, has been one kind of the most important and living power in the state powers. Actually, the history of human's law system has proved that every great change of human society was related to the law enforcement power. After entering twenty-first century, with the deepening of the reform of the socialist market economy, the reform of political system is inevitable. The law enforcement power in the modern sense of ruling by law is essential for carrying out continuously the policy of ruling by law. This not only is determined by the substantially important part which administration by law plays in carrying out the policy of ruling by law but also is intrinsic demand of an important legal system. Therefore, the research on the law enforcement power is of substantial importance. This doctoral thesis elaborates on the law enforcement power from the five aspects.The first chapter of this doctoral thesis discusses mainly the concept of law enforcement and the structure of law enforcement power. Starting from the implication of law enforcement, this doctoral thesis, through a semantic analysis on law enforcement, analyzes the logic error of the term of law enforcement in the broad sense from the juridical angle, sums up and generalizes the definition and characteristics of law enforcement. Further it gives a definition of law enforcement power, that is, law enforcement power is the power of enforcing law through statutory power and statutory procedures in the process that state administrative organs, authorized organs and entrusting organs and administrative functionaries exercise their powers. The law enforcement power should include: the power of interpreting laws, the power of administrative disposal, the power of administrative supervision, the power of administrative coercion and the power of administrative penalty. The administrative power is composed of three parts: the internal power, the medium power and the external power. If the internal power and state's other powers can't be assigned properly, there will be a negative influence on the rights of citizens and legal persons and even the rights of social subjects will be damaged. The law enforcement power is the part of the external power of administrative power. Obviously the law enforcement power is a main function of administrative power. Especially in the present civil society, the administrative power is exercised mainly by enforcing law.The second chapter of this doctoral thesis discusses the function, the attribute and the purpose of law enforcement power from the perspective as it ought to be.This thesis points out that, the fundamental purpose of law enforcement power, determined by the function and the attribute of law enforcement power, is to protect the legitimate rights and interests of citizens and legal persons. The function of law enforcement power refers to the favorable and positive role law enforcement power plays for objectives of enforcing law, society and state in the process of enforcing law, whereas the attribute of law enforcement power refers to its basic nature. Putting together the function and the attribute of law enforcement power into studying and analyzing can not only understand law enforcement power more clearly but also more deeply analyze law enforcement power in terms of the developmental cause of law enforcement power in order to understand law enforcement power in a all-round way. Superficially, law enforcement power realizes the function of ensuring human rights by delimiting powers and controlling strictly the exercise of powers and its exercising procedures, realizes the function of maintaining procedures by changing the procedure as it ought to be into the procedure as it is through legal authority and realizes the function of power coordination and society communication by coordinating with the other state powers and communicating with society. Nevertheless, the above function of law enforcement power is determined by its attribute. Compared with legislative power and juridical power, law enforcement power has its characteristics, such as compulsion, efficiency, service, reflection. In fact, this thesis discusses the function of law enforcement power, at the same time; it also discusses the value issues of law enforcement power and finally comes to the conclusion that the purpose of law enforcement power is to protect the rights and interests of citizens.The third chapter discusses mainly the relationship among law enforcement power, legislative power, juridical power and law supervisory power. All kinds of state powers consist of one system, in which the law enforcement power is one part of them. Does the state powers represent its specific characteristics only when they consist of concretely legislative power, juridical power and law enforcement power. This thesis agrees generally with the classic theory of separated power, that is, state powers are divided into legislative power, law enforcement power and juridical power, they are exercised respectively by legislative bodies, administrative authorities and judicial organs. Nevertheless this thesis emphasizes that the separation of power never implies there is no relation among powers. Otherwise it is difficult to explain why administrative authorities in some countries can exercise legislative powers; judicial organs can make a case law and legislative bodies can exercise many the other powers besides legislative power if we don't admit the relation among powers and their restrictive relationship.Besides, the law supervisory power refers to the power that state supervises the activities of lawmaking, law enforcing and jurisdiction by law, supports legitimate activities and corrects and rescinds illegitimate activities. Generally speaking, there are two kinds of law supervisory powers: as an approach of restraint on powers in some power-separated western countries, one represents the mode which law enforcement power, legislative power and juridical power are separated each other and are supervisory mutually; the other represents the political system of People Representative adopted by socialist countries which People's Congress is the top organ of state power and by which the state powers are authorized. The top organ of state power exercises the law supervisory power through itself and the specialized supervisory organ. That the system of law supervision of Chinese People's Congress is a basis of entire national system of law supervision determines is just the linear structure of national system of law supervision. Therefore, this thesis regards the law supervisory power as an independent power of state powers whereas the classic theory of separating power regards the law supervisory power as a dependent power.The 4th chapter elaborates on the western theory and practice of separated power of law enforcement power. As an independent power of administrative authority, law enforcement power is a result of the modern western system of democratic politics. In the western history, while theoretically the thinkers kept enriching and improving the theory of law enforcement power, practically the politicians put the theory of law enforcement power into practice. Given they had different historical traditions and different situations of politics, economy and culture, some western countries also had different mode of law enforcement power. To explain this point, this thesis takes British mode of law enforcement power, American mode, French mode and German mode as samples.No matter what is difference in the modes of law enforcement power of the four countries above, there is an identical idea, that is, state power should be separated and be restricted by law. In a word, the correct idea and the rigorous system design, which the orient nations lacked, are two successful factors of law enforcement power of some western countries.The 5th chapter analyzes the present existing problems of Chinese present system of law enforcement power and the reforming path. With the gradual deepening of reform of market economy system and the change of Chin's entry into WTO, the Chinese system of law enforcement power established in 1980's is facing an unprecedented challenge after it has been operating for nearly 30 years. This thesis holds that, given the dominance of law enforcement power and the traditional idea of official chauvinism, whether or not Chinese reform and openness can keep an enduring and deepen development and whether or not those new problems faced by China can be resolved efficiently depend on the improvement of Chinese system of law enforcement power.The practices prove that, because the change of government's function and the reform of administrative system aren't finished completely, there are some shortcomings in the present system of law enforcement power. These shortcomings include: the power abuse of administrative organs made the inflated department, the absence of clearly defined duties and responsibilities of government organs and the improper law enforcement on the one hand, and the overlapping function of government organs and the low efficiency of law enforcement led easily to infringe on the rights of citizens, cause easily corruption and restricted the efficiency of law enforcement power on the other hand. The reasons why made these shortcomings are: Chinese administrative organization law was too much flexible; the articles of laws were simple and rough and lacked the practice and therefore leaved too much room for rule of man and rule of power. In the design of organization law system, the overemphasis on the division of law enforcement power without consideration of coordination and responsibility of different government organs.Although China got a little of achievements in the reform administrative system since the reform and openness, the reform cost was obviously beyond expectations of the designers because of lacking the ail-roundly and reasonably scientific design at the level of law system. Because we only depended on the policy document, which is more flexible and unstable, the administrative reform was not designed through law system. The overseas experiences of assigning law enforcement power and the lessons of Chinese administrative reforms since the reform and openness prove that the scientific law system is essential to improve Chinese present system of law enforcement power. To do this, besides those measures recognized abroad, such as cutting down the personnel, constructing the civilized, highly effective, fair and clear law-enforcing officials and so on, the following measures are also necessary from the jurisprudent angle: strengthening the legislation of government organization law and establishing the dynamic system of law enforcement power.
Keywords/Search Tags:law enforcement power, assignment of state power, system of law enforcement power, mode of assignment of state power
PDF Full Text Request
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