Issues On Administrative Incapacitation

Administrative incapacitation refers to the loss or restrictions of the counterpart’slegal capacity under the effects exerted by administrative power. The incapacitation, inessence, means the loss of legal personality. As a consequence, a “negative identity” inlaws is formed. Besides, it means the loss of legal capacity and the decrease of legal status.Administrative incapacitation stresses the deprival of the counterpart’s existingqualifications on the basis of admitting his or her original legal capacity. The result of suchan effect is demonstrated as the counterpart’s “loss of what should have been obtained”.Administrative incapacitation is an effective method adopted by administrative subjectiveorganizations in society management and control.Endowment by the state laws, specific legal capacity theories and specialty of publiclegal personality provide theoretical support for the existence and establishment ofadministrative incapacitation system. Legal capacity system is a man-designed result inpositive law. The absence and density of legal capacity and even concretization andcategorization of legal capacity under specific situations are all the results of the effects ofnational wills. In particular, in the relation of public laws, on the one hand, social membersparticipate into legal relationship with the qualification as human beings due to theirnatural attribute; on the other hand, they participate into special relationship withmembership due to political and other social attributes. In addition, because of non-selfgovernance of public laws, behavior capacity unifies with legal capacity. The restrictionson behavior qualifications then constitute the deprival of legal capacity.Administrative incapacitation involves civic competence, specific vocational abilityand even some abilities related to civilian activities. Administrative incapacitation hasmulti-layered forms of effect exertion which can be demonstrated as depriving thecounterpart of certain positive identity and causing him or her return to the status ofcommon legal subject through depriving special legal capacity. It can even be manifested in the form of further restricting general legal capacity, thus causing the counterpart toundertake certain negative identity. Administrative incapacitation, in a strict sense, is usedas one “general concept”, which refers to all the forms of administrative powers’ effectexertion for depriving or restricting the counterpart’s legal capacity. Qualification penaltyis indeed the most centralized and typical expression of administrative incapacitation.However, in practice, Administrative incapacitation can also be demonstrated to be adverseadministrative punishment behavior and even one factual behavior existing with theconsequences of other legal behaviors.Considering the major influence of administrative incapacitation on the counterpart’srights, it is necessary to carry out systematic regulations on incapacitation system from theperspective of legislation form, contents of the system and implementation procedures andso on. In terms of legislation forms, the legal ranks of the regulation on administrativeincapacitation should be improved. Besides, it should be emphasized that the enacting lawson incapacitation should adopt legal reservation. It should be clarified that only laws andadministrative laws set up clauses about legal capacity loss and strictly regulate thedetailed stipulations about right loss in normative files.Considering from the perspective of the systematicness of administrative effects andfor the purpose of more comprehensively guaranteeing the counterpart’s rights,administrative incapacitation should be matched with corresponding legal restitute systemso that it can provide possibility of restitution and guarantee for the counterpart’s legalcapacity which is deprived or restricted. In this way, the complete process from “legalcapacity endowment” to “legal capacity loss” and then to “legal capacity restitution” forthe counterpart under the effect of administrative power can be constructed.