Research On The Construction Of Administrative Law Enforcement System For Safeguarding Rights In The South China Sea

Moving from land to sea and toward the sea is an important symbol of a country's opening to the outside world.The ocean is playing an increasingly important role in influencing a country's sovereign interests and expanding its space for survival and development.Marine security is not only a basic guarantee for safeguarding maritime rights and interests,developing Marine economy,exploiting Marine resources and protecting the Marine environment,but also an inevitable requirement for building a national security barrier and a prerequisite for building a maritime power.Maritime rights protection and law enforcement is indeed a systematic project.Rights protection and law enforcement are based on national sovereignty,sovereign rights and jurisdiction,while national sovereignty and maritime rights and interests are the starting point and end point of rights protection and law enforcement.Although the entry into force of the United Nations Convention on the Law of the Sea(UNCLOS)has re-established the world maritime order,it provides the basic institutional framework for the allocation of maritime rights among States.However,the expansion of the maritime rights claimed by the coastal states intensifies the struggle for the rights of all countries,which leads to the increasingly fierce struggle for the interests of Marine resources and maritime rights among countries.The South China Sea dispute is a complex dispute involving sovereignty,security,economy and environment.Because the South China Sea involves many direct stakeholders,and is affected by multiple factors such as the geostrategic location of the South China Sea and the international security situation,the South China Sea issue is no longer just a sovereignty dispute between China and its neighboring coastal countries.It has already involved China's national security and the political order pattern in the whole East Asia region,but also related to China's economic and social development,peaceful rise and the reconstruction of the world maritime order and other multiple issues.In the face of such complex,severe and intractable issues as the South China Sea dispute,the situation and task of China's rights protection in the South China Sea are becoming more and more difficult.How to safeguard China's sovereignty and maritime rights and interests in the South China Sea has become an important proposition concerning national interests and national dignity in the new era.Safeguarding maritime rights and interests in the South China Sea is an important theoretical and practical proposition.To analyze and expatiate on the subject of administrative law enforcement for safeguarding rights in the South China Sea,we must first clarify two premises.First,the historical reasons for China's sovereignty over the South China Sea,what is the core of the disputes in the South China Sea and the grim situation faced by the disputes in the South China Sea.Second,the concept of maritime rights,maritime rights or maritime rights should be clarified to clarify the purpose of safeguarding rights in the South China Sea.By sorting out the evolution of the administrative law enforcement system for safeguarding rights in the South China Sea,this paper analyzes the clear concept,connotation and characteristics of the law enforcement and the functions of the administrative law enforcement for safeguarding rights in the South China Sea.From the perspective of administrative law,we mainly face the following practical dilemmas when we examine the rights protection and law enforcement in the South China Sea.First of all,The Chinese Coast Guard has become the unified body of maritime rights protection and law enforcement after it was transferred to the People's Armed Police Force.As an armed maritime rights protection and law enforcement force,the Chinese Coast Guard is authorized to perform the functions of administrative law enforcement.Although its mission attributes have not changed,the Chinese Coast Guard has changed from the State Council to the Central Military Commission,and its status has been transferred from an administrative organ to a military subject.Under such circumstances,the Chinese Coast Guard,as the main body of the country's maritime rights protection administration and law enforcement,has both military and administrative powers.It needs to be clarified whether this is legally justified or not.This is a great breakthrough to the current theory of administrative subject in our country.Due to the lack of authorization setting,the appearance of the law enforcement power of the Chinese coast guard is unclear.The boundary between it and other law enforcement subjects is not clear,and the basis of law enforcement is insufficient.These factors make the nature of this new law enforcement subject lack of theoretical support,and the effectiveness of law enforcement and the purpose of reform have not been fully played.Secondly,due to the lack of law enforcement basis,law enforcement practice comes first,legislation and law enforcement theory comes second,which also leads to the existing law enforcement methods in law enforcement practice can not meet the needs of rights protection practice,and the legal nature of some law enforcement methods is unclear.Different law enforcement methods apply to the same illegal situation.Some law enforcement methods commonly used in practice also have the obstacle of insufficient deterrence,which is difficult to produce substantial adverse consequences for the law-breakers.The area of the South China Sea is vast and there are overlapping maritime rights of many countries.Different countries have different bases for their sovereignty claims.However,China always lacks a comprehensive maritime basic law,and these multiple factors affect the actual effect of administrative law enforcement for safeguarding rights.Finally,the use of any law enforcement method can not be separated from the standard and exquisite program design,the standard rights protection and law enforcement procedures are the basic requirements of the administration by law.The lack of system in law enforcement procedures also affects the choice and application of law enforcement methods,which is not conducive to effectively safeguarding rights and interests in the South China Sea.Law enforcement is the activity of enforcing and applying the law.Administrative law enforcement of rights protection in the South China Sea is a practical problem,but practice without theoretical guidance is difficult to be universal.The problems existing in law enforcement cannot be separated from the guidance of law enforcement theory.First of all,the particularity of administrative law enforcement for safeguarding rights in the South China Sea and the practical needs of the practice of safeguarding rights in the South China Sea are not compatible with the existing theories of administrative law enforcement.The existing theories are lagging behind,so it is urgent to update and develop the law enforcement theories.The theoretical breakthrough of administrative law enforcement for safeguarding rights in the South China Sea includes two aspects: the development of the existing theory by law enforcement and the establishment of the principle of law enforcement for safeguarding rights.Secondly,it is necessary to form the theoretical basis to guide the rights protection in the South China Sea through the analysis of the new implications of the administrative subject theory,cooperative administration theory,state jurisdiction theory and due process theory under the guidance of the sovereignty theory under the overall national security concept.Finally,starting from the purpose of safeguarding rights and interests in the South China Sea--safeguarding national sovereignty and maritime rights and interests in the South China Sea,this paper establishes the basic principles that should be followed by administrative law enforcement in safeguarding rights and interests in the South China Sea.They mainly include the principle of administration by law,the principle of rationality,the principle of proportion,the principle of administrative efficiency and other general principles of administrative law enforcement.In addition,there are other special principles,such as the principle of comprehensively safeguarding national interests in the South China Sea,the principle of equality and reciprocity between countries,the principle of effective control of rights protection and law enforcement,and the principle of jointly managing the crisis in the South China Sea.Due to the need of law enforcement environment,compared with the land administrative law enforcement,the law enforcement subject in the South China Sea has the particularity of identity attribute,which is integrated with armed,police and administration.In the South China Sea,a special international and complex law enforcement environment,the military organ's performance of administrative law enforcement functions can enhance the strength and deterrence of safeguarding rights.Many foreign maritime powers such as the United States,Japan and so on have adopted such a law enforcement system.Although the Coast Guard is authorized to perform the function of Marine administrative law enforcement,as a new type of administrative law enforcement subject,does it have legitimacy in the current theory of administrative law?How to explain and clarify the relationship between China Maritime Police Force and China Maritime Police Force under the framework of administrative law,and how to delimit the boundary of its right to safeguard its rights and enforce its law with other maritime law enforcement bodies? In addition,the coast guard law enforcement ship how to locate the legal attributes.All these problems need to be answered by perfecting the subject system legislation.The perfection of the subject system is not only the requirement of legal authority,but also the basis for safeguarding maritime rights and interests and realizing maritime power.However,it is not enough to safeguard territorial and sovereignty integrity without the power of law.It is also necessary to build a force system of safeguarding rights in the South China Sea with the cooperation of the military,police and the people,so as to give full play to the power of multiple subjects and jointly safeguard sovereignty and maritime rights and interests in the South China Sea.Whether an administrative act is lawful includes not only the legality of the source of power,but also the lawful exercise of administrative power.This requires that the law enforcement should have a clear legal basis,the choice of law enforcement should be reasonable,need to follow the principle of proportion.There are four types of administrative law enforcement methods for safeguarding rights in the South China Sea,including sea cruise,administrative inspection,administrative coercion and administrative punishment,and preventive protection.These four types are applicable to different law enforcement objects and different illegal acts,which naturally produce different law enforcement effects.By improving the existing administrative law enforcement methods for safeguarding rights,this paper provides the basis for standardizing the application of law enforcement methods for safeguarding rights.Law enforcement should first be based on legal principles,in the process of law enforcement should be law enforcement,not selective law enforcement.Therefore,it is necessary to reshape the legal system of safeguarding rights and enforcing law from the legal principle,and improve the normative system of the use of force at sea.However,in order to truly safeguard sovereignty and maritime rights in the South China Sea,it is urgent to clearly explain the nature of the dotted line in the South China Sea,strengthen China's ability to control maritime rights in the South China Sea,and increase the application of deterrence law enforcement methods.This,of course,depends on the optimization of law enforcement.The core essence of rule of law is procedural rule of law.To improve the procedures of administrative law enforcement for safeguarding rights in the South China Sea,it is necessary to improve the general procedures of maritime law enforcement for safeguarding rights,such as the implementation procedures of administrative coercive measures,the standardization of information disclosure procedures,and the amendment of penalty hearing procedures.It also needs to refine the special procedures of rights protection and law enforcement,such as the specific provisions on the construction of cruise procedures,the improvement of boarding and chasing procedures,and the timely use of rapid release procedures.In addition,the vast administrative law enforcement of rights protection in the South China Sea cannot only rely on the unilateral force of the Coast Guard.It is necessary to establish an inter-agency law enforcement assistance procedure and give full play to the assistance role of multiple maritime departments.For example,we should establish a military-police cooperation procedure mechanism and strengthen international law enforcement coordination to jointly maintain a relatively peaceful order in the South China Sea.Only in this way can sovereignty and maritime rights and interests in the South China Sea be better safeguarded and the effect of law enforcement for safeguarding rights and interests be fully realized.It is also an urgent need for the current theory and practice of administrative law enforcement to perfect the system construction of the basis for safeguarding rights in the South China Sea.Therefore,it is necessary to perfect the supporting system of the Coast Guard Law on the basis of the Coast Guard Law,and form a legal system of safeguarding the rights of the Coast Guard with the support of substantive law and procedural law.At the same time,it is necessary to improve China's laws and regulations related to the sea and construct the system of conduct law for safeguarding rights in the South China Sea,so as to provide sufficient and clear law enforcement basis for safeguarding rights in the South China Sea and better guide the practice of safeguarding rights.