Research On Legalization Of The Police Control

The People's Police Law provides for a number of immediate police powers conduct such as the enumeration,the protective restraints,the forcible dispersal,the forced removal from the scene,the compulsory detection,the use of police and weapons,the detain,the seizure,and the control to water,electricity,gas,heat and other social resources in emergency situations,etc.These police power behavior actually belong to the same type of police behavior,namely police control.Because,although the above-mentioned police power behavior is relatively fragmented in form,or belong to the temporary restrictions on personal freedom exercised by the police authorities,or belong to the temporary restrictions on property by the police authorities,or belong to the controlled management to the specific items,specific places,the specific social resources by the police authorities,however,both of them all use the management and control of the emergency public security risks as the purpose,and they all use violence or coercion as the main mode of conduct,and they aren't based on the premise that the police counterparts refuse to fulfill their obligations under the police disposition,and they all are similar to the administrative coercive measures,especially real-time administrative coercive measures.Since police control occupies half of all police authority behavior,the realization of the legalization of police control basically means the realization of police rule of law,therefore,to strengthen the research on the police control and the legalization of the police control and to construct the theoretical system of the legalization of the police control is an important issue before the majority of police law scholars.Accurately defining the police control,clarifying the connotation and denotation of police control is the theoretical premise of police control.Examining the etymology of"police" and "regulation",the police control is not only mandatory management and control exercised by the People's Police against relatives under the legal situation,is also the extension and use of the mandatory management,control means of the Control penalty in the field of Non-penalty area,is also the inevitable result of government regulation extended from the economic field to the social field under the risk society background.From the point of view of police administrative law,police control is the administrative act that is carried out by the police for the immediate purpose of maintaining public security and public order,and is also a temporary control action of the police on the personal and property of a specific citizen,is also a controlled,managerial act of the police on specific objects,specific places and specific social resources.Police control is closest to the administrative enforcement measure in administrative action in nature,but some police control goes beyond the scope of administrative coercive measures because of the difference of behavioral targets,behavioral objects or stages of conduct Judging from the nature of the behavior,there is a clear difference between police control and other police behaviors.Police control directly aims at managing,controlling and eliminating emergency public security risks;Police control takes people,objects,places and social resources as targets under the background of emergency public security risk;Police control takes the supervision and control of a specific object as the behavior content instead of the distribution of rights and obligations;Police controls takes violence or coercion as the main mode of conduct Judging from the type of behavior,police control can be divided into different types according to different standards.The police control can be divided into police control to citizens,police control to specific objects,police control to specific places,and police control to specific social resources,depending on the target to which police control is directed.control;the police control can be divided into protection police control and deterrence prevention police control,depending on the direct purpose of police control over the counterpart of the police;the police control can be divided into a single police control and a comprehensive police control,depending on the type of coercive measures used in police control.The legitimacy of police control is the logical premise of the legalization of police control.The legitimacy of police control is an important theoretical issue.On the one hand,the legitimacy and rationality of any legal system are the basic requirements of good governance.On the other hand,police control,unlike general police authority behavior,appears mainly in the form of violence or coercion,often accompanied by restrictions or deduction of civil rights and tensions in the local social order,so that police control often leads to doubt about its theoretical legitimacy and rationality in theory and obstruction in practice.In fact,after investigation,we can find that the legitimacy and rationality of police control are beyond doubt.Police control not only has a profound legal foundation,theoretical basis and realistic foundation,but also has a glorious and profound social responsibility.First of all,the existing law has explicitly authorized the power of the police control,the scope of police control and the means of police control to the police authority,which has solved its formal legitimacy.Second,the legitimacy of civil rights in the field of ideology theory,government control theory,public interest theory,risk society theory provide a full theoretical support for police control.Third,the root causes of many public security risks during the period of social transition and the widespread existence of disharmony social phenomenon which eliminate directly depending on police control in our country are the realistic basis for the survival of police control and the origin of the substantive legitimacy of police control.Fourth,it is an important mission of police control given by national law to fulfill the basic functions and duties of public safety and public order while fulfilling the functions of hazard prevention,rights protection and social control.The core issue of the legalization of police control is the civil rights protection.The civil rights protection is the starting point and final destination of the legalization of police control.Conflict and balance between the two sides on the basis of coupling are the eternal theme in the closely integrated and contradictory unity of police control and civil rights.On the one hand,the mutual conflicts between police control and civil rights on the basis of interdependence are the basic ways in which the two social roles play each other.The reason is as follows:judging from the source point of view,the police control power of police agencies originates from civil rights;judging from the function of police control,the realization of civil rights depends on the protection of police control;judging from the way police functions,the means itself of police control such as enumeration,the protective restraints,the forcible dispersal,the forced removal from the scene,the compulsory detection,the use of police and weapons,the detain,the seizure,and the control to water,electricity,gas,heat and other social resources in emergency situations etc implies the restriction or derogation of citizens' personal rights,property rights,demonstrations of assembly and processions,labor rights and the like;judging from the essence of the conflict between police control and civil rights,the conflict between police control and civil rights actually belongs to the conflicts of public power and private rights,the conflicts between public interests and private interests,the conflicts between order and freedom,the conflicts between efficiency and fairness conflict,and as long as these societies exist such as public power,private rights,public interests,private interests,order,freedom,efficiency and fairness will never die out,the conflict between police control and civil rights will always exist.On the other hand,conflicts between police control and civil rights often show an imbalanced status.This imbalance is not an overbalance caused by over-restraint of police control by civil rights,but an imbalance caused by over-squeeze of civil rights by police control.Because of their relative weakness,civil rights that lack effective remedies can not stop the abuse of police control,nor can they change the social realities of excessive police control.The most serious consequence of the imbalance between the police control and civil rights lies in the violation and violation of civil rights.Therefore,in order to protect rights of the the relative,in order to reduce or prevent illegal behavior in the regulatory process,in order to enhance the authority of the police enforcement and the credibility of law enforcement,in order to maintain the harmony between the police and the civilians,the conflict between police control and civil rights needs to be controlled in an appropriate range.To this end,we should strive to establish an institutional mechanism to maintain the balance between police control and civil rights.For example,we should strictly regulate the starting mechanism of police control,clarify the limits of police intervention on civil rights,strengthen the control over the legal procedures for police control,establish and improve the responsibility system for police control,and improve the relief system for the counterparts in police control.The basic requirement of the legalization of police control lies in the normative exercise of police control right whose inherent guarantees are the basic principles and due process.Police control power is the core category of police control.The specific performance of the police control right is the right of enumeration,the right of the protective restraints,the right of the forcible dispersal,the right of the forced removal from the scene,the right of the compulsory detection,the right of the use of police and weapons,the right of the detain,the right of the seizure,and the right of the controlling to water,electricity,gas,heat and other social resources in emergency situations,etc.The power of police control not only possesses common features of the general police disposition power such as public power,state power,administrative power and police power,but also possesses uncommon features of the general police disposition power such as privilege,administrative emergency right,high discretion and concentrated expression of police violence.The power of police control takes the value of order in the legal value system as the fundamental value orientation.The police control right takes the maintains of the public order,the safe living guarantee,the emergency disposal and the convergence of the law enforcement as its basic duty.The exercise of police control rights takes the principle of administrative legitimacy and administrative rationality as the general principle,and take the principle of administrative emergency and proportionality as a special principle.The due legal procedure exercised by the police control right is the fundamental guarantee of the legalization of the police control,including the substantive conditions and procedural conditions.The former means that the exercise of police control rights must accord with the requirements of the actors,objectives,legal facts and appropriateness.The latter means that the exercise of police control rights must,in principle,fulfill the reporting and approval procedures;be implemented by more than two people's police;present law enforcement identification documents;inform the parties of the reasons,basis,rights they have enjoyed and remedy channels;listen to the parties' statements and defendants;make on-site transcripts;conduct on-site law enforcement video and audio recordings and other general legal procedures.Legal supervision of police control is the external guarantee of normative exercise of police control right,and also the basic means of relief for the legitimate rights of the police counterparts under police control.Because there is no direct regulation on police control in the current legal supervision system in our country,we must perfect it on the basis of deconstructing the legal supervision system of police control.In the current legal system of police control in our country,administrative review,police inspector,procuratorial supervision and court supervision belong to the main form of supervision.In the aspect of police control reconsideration,the appropriate applicant and respondent's confirmation problem in the police control reconsideration,the sharing of burden of evidence for the existence of the contending police control act and the review standards of police control rationality are all urgent technical issue to be solved in the current police control reconsideration practice.In addition,we should also improve the current police control review system.For example,the police control review should be mainly undertaken by the people's government at the same level;the principle of proportionality should be the core of building the standard for the police control rationality review;the system of investigating the legal responsibility of the main body of illegal police control by the reviewing organ concurrent with police reconsideration should be established.For police control inspectors,police control belongs to the key aim in the police inspector ordinance.In the future,the focus of improving the system of police control inspectors will be to further enhance the effectiveness of police control inspectors,for example,to further enhance the independence of the police inspectorate,to establish a system of prior reports and records for police control,to establish persistent working mechanism of police inspectors in special areas,to establish and improve the police control inspector responsibility system.As far as the procuratorial supervision to police control is concerned,investigation and prosecution of job-related crimes in the police control law enforcement,protest against the administrative litigation cases filed by the relative persons under the police control,and to put forward the advice about police control on law enforcement are the main methods for procuratorial supervision;to The establish the reporting and filing system of a major security incident about police control,to establish a joint conference system that implements the procuratorial proposals about police control,and to put the police control cases with large number of police counterparts into the scope of the case of public interest litigation belong to the direction of reform and innovation of procuratorial and supervisory system about police control in the future.As far as judicial supervision to police control is concerned,police control is actionable,and belongs to the scope of acceptance of people's court.The basic function of judicial supervision to police control lies in restricting the executive power including the police power,supervising police control actions and police control subjects,and relieving the rights of the police counterparts.The basic content of the judicial review of police control lies in examining whether the main body of police control is lawful,whether police control has the corresponding factual basis,whether police control is in violation of legal procedures and whether it constitutes abuse of power and obvious misconduct.In the future,the system of judicial supervision of police control should be further improved.For example,the legal code of the People's Police should have the rightful place of judicial supervision.The police control proceedings should generally be under the jurisdiction of intermediate people's courts and the police control proceedings should be used with caution.