Research On Administrative Emergency Power

The administrative emergency power, is one of the special administrative powers.Because of the"undefinite"characteristic of emergencies ,it is always a discussing problem whether the law can rule administrative emergency power.When the construction of country(government) and society(citizen) is breaking, under the guide of theory of public service administration, how to rule administrative emergency power in legislations is probable.Whether it is socientific and reasonable of the power deployment of administrative emergency power is too important. It do determines the result of handing emergencies.So it has important values both of the process of handing emergencies and result. Administrative emergency power is a very special angle of view to modernization of law system. The content of administrative emergency power almost includes all administrative behaviours. The power deployment of administrative emergency power can make the defect of law system appearance in normal law condition.Also the particularity of administrative emergency power is although administrative emergency power threatens the basic rights of citizen strongly and administrative emergency discretionary power is powerful, we can't simply research the administrative emergency power under controlling power theory. Because of the function of social power in handing emergencies, administrative emergency power system is more available. The article research the administrative emergency power under the balance theory and public administration. The author studies the connotation, the characteristic and the type, and the difference between the administrative emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power. Then, the author analyses the general theory of the administrative emergency power, namely, paying close attention to the negative effect of the administrative emergency power and pursing the double value of procedure and consequence of the administrative emergency power, proposes the new progress of the administrative emergency power under the controlling view, and structures the normal system of the administrative emergency power: legislative prevention, internal control, and judicial review afterward.Besides"introduction"and"conclusion", there are four major parts (the first chapter to the forth chapter) of the main body in this paper.The first chapter summaries the connotation, the characteristic and the type, and the difference between the administrative emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power. First, the author combs the connotation of the administrative emergency power, and analyses special characteristics of the"administrative"and"emergent"and defines its connotation; secondly, the author describes its type and characteristics; Finally, the author makes a distinction between the administrative emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power.The second chapter analyses with First, the author analyzes on the present legislative situation and power deployment and procedure of the administrative emergency power in foreign countries. And researching on the situation of our administrative emergency power legislation, comparing the characteristics of our country and foreign countries, we found the defects of our administrative emergency power system.The third chapter is to structure administrative emergency power system:Through discussing the condition of administrative emergency power legislation, pointing out the defect of administrative emergency power system in our country,and then we constructs the basic principle and the concrete system in the formulation of unified administrative emergency law. Second, the author is to structure the administrative emergency power system. It includes five problems:First, administrative emergency legislation includes emergency legislation and administrative emergency legislation;Next, the basic principles of administrative emergency power. The author thinks the legal first principle and the legal retentive principle which exercises the significance regarding the establishment and practice. The proportional principle may active constrain the power such as the administrative emergency power which is extremely rich in discretion; Third, the author researches on the power deployment of administrative emergency main bodies. It has the characristics of the centralization and extension powers;Fourth, the author researches on the administrative emergency behaviours.The author compares the compulsory and uncompulsory administrative emergency behaviours, founding the good effects.At last, the author researches on the administrative emergency procedure, structuring many systems to look for the administrative emergency procedure values.The fourth chapter is about the way on the restraint and control of the administrative emergency power: internal control of the administrative organ. The author points out the construction of the administrative organ internal control system by analyzing its necessity, and analyses on the domain of its function. First, the author believes that the administrative organ internal control may avoid the abuse of the administrative emergency power and make up the insufficiency of the external control. The internal control theory originates in transforming from the traditional normative controls the power pattern to the functional construction pattern. Next, the author researches the practical significance of the internal control. The internal control is the need to administrative emergency system reform, and has own superiority to the external control. Thirdly, the author analyses the way on internal control. The system of the administrative organ internal control consists of the level control system, specially the control system,"the decentralization"system as well as the administrative judicial system. Finally, the functional domain of the administrative organ internal control is the domain to establishing and domain to carrying out.Another way on the restraint and control of the administrative emergency power is: Judicial review of the court, which includes the compulsory and administrative emergency measure power and the uncompulsory and administrative emergency power, realizes the final relief to the administrative emergency power. The author believes that although at present our country administrative emergency measure belongs to the document scope of the court, but the examining scope of the administrative emergency measure power is too narrow. It is necessary to absorb Germany examination standard for discretion power to strengthen the breadth and the depth of the examination to the administrative emergency measure power in our country. Our present examination of the administrative emergency measure power in the administrative procedural law is the review mechanism in anticipation of the court about the enforce case applied by the administrative organ. Although many scholars raise the objection upon this, the author believes that the review mechanism might carry on the effective control in preventing the illegal administrative emergency power to violate the rights and interests of the private party. As for the pattern of voluntary control of the administrative organ, the author believes that we should integrate it to the administrative proceedings scope.And the author look for nother ways to protect the basic rights of citizens in judicial review.