Some Thought About Arbitrary Administrative Execution System

Arbitrary administrative execution always consists of two modes, judicial execution mode with the aid of the court involvement and administrative execution mode with acknowledges of voluntarily administration executed by administrative department. The system construction of various countries differ according to its own legal tradition, power distributive mode and the administrative theory. According to the 66th item of People's Republic of China's Administrative Litigation Law, the 51st item of Administrative Penalties Law and the concerned items of Judicial Interpretation about Administrative Litigation Law issued by the Supreme People's Court, at present, China is can'ying out the arbitrary administrative execution system with the principle of applying to the court for compulsory execution and the administrative department self-reliant execution enforces for the exception. At present, assurance of human rights is more and more important,arbitrary administrative execution system, which connecting with property rights of citizen and corporation, should be restricted by more and more strict legal system. The original design of the present arbitrary administrative execution system is more profited from Anglo-American law system with the aim at guarantee citizen rights. But in the practice,the beginning design value orientation of the system is not realized, there are many problems comes forth instead. Theoretically there is a contradiction between this system and Administrative Litigation Law and the principle of "administrative action can not be interrupted by any by litigation or review", the legal system can not be unified. It will damage court's neutral status if court executes any idiographic administrative act, and will be against offeree's remedial right. In practice, it causes a kind of non-steady state of the illegal activity sanction for a long time, and objectively encourages the illegal activity, affects the continuity ,the authority and the administrative efficiency of administration organ, is disadvantageously to the public interest and the effective maintenance of social order, also causes the heavy burden to the court, can not truly protected offeree's rights and interests, and causes original intention which is to protect the human right can not be realized. There are many kinds of way of supervision on administrative action, judicature supervise is the one of them. To avoid the abuses of administration enforces authority,the system of inside and outside supervision should operate in coordination and the level and quality of administrative law enforcement personnel should be enhanced. The author's opinion for the best outlet of administration forces to legislates is, on the one hand, return the power of administration forces to administrative organ, on the other hand, strengthens administrative procedure control and the judicature supervises of this authority utilization.In view of our country present pattern of arbitrary administrative execution system and legislation, from the theory and practices, connecting Chinese actual situation., this article suggests to return administration enforce power to administrative organ, taking "administrative action can not be interrupted by any litigation or review " as principle,taking certain special situations as the exception which can be stopped carrying by explicitly stipulation of the law, the administrative laws and regulations, the court not participate any arbitrary administrative execution and be of neutral judgment status, make sure that the arbitrary administration enforces is the relief way, consummate the corresponding compensation system, strengthen the responsibility system of person in charge of the main administration enforce body, construct a pattern in which the administrative organ and judicial organ have their clear duty, and the working efficiency of the administration and judicial system of society is high.