Research On The Controlling Of Administrative Emergency Power

Administrative Emergency Power refers to the power that is executed by an administrative subject according to its own advantages when a state or region enters an emergency state order to restore the ordinary state before emergency state. In China, the system of administrative emergency power and deep theory and study is no far enough,there is no unified law of emergent state in China at present; the laws and regulations are fragmented and in disorder; which is distributed according to departments and variety of disasters, emergent leading institution may be needed to construct temporarily in case that encounter non-single disaster, which is not beneficial to eliminate the emergent state timely; the unclearness of defining powers easily cause the grey area; there also exist such circumstances that the scope of protection of civil rights is unclear. A perfect emergent power system is urgently needed in establishing rapid-response social emergency response system in order to quickly eliminate the state of crisis and protect the interests of country, collective and citizens at the greatest degree.Emergency state is a factual condition in which the administrative emergency power is implemented. Therefore, a clear definition of a state of emergency is needed before studying how to regulate emergency power. Emergency situation is called a particular state, dangerous state or special condition in some countries, there is also great variety in understanding: generally including the understanding in broadest sense (which includes wars, rebellions, all emergency such as emergent public health incidents); the understanding in narrow sense that only refers wars and rebellions and the understanding in narrow sense that excludes wars and rebellions. By comparing the characteristics, advantages and disadvantages of the three definitions and in combination with the actual circumstances of China, the author shall give a definition on the discussed emergency situation in this thesis and make a definition on its extension and adopt the understanding in a narrowed-sense that excludes wars and the rebellions. Strive to standardize the executive process of administrative emergency power and a system of administrative emergency power regulations so as to eliminate the arbitrary extension in the executive process of administrative emergency power and narrow the arbitrariness caused by regulations.The introduction and analysis of measures and models of regulating administrative emergency power that are the comparatively reprehensive in the world can provide a guidance in regulating administrative emergency power. They can be divided into three kinds: first, to regulate administrative emergency power in the constitutions (including the definition of independent system of emergency state, both regulating emergency power and emergency state, specially regulating several kinds of emergency power); second, to make up unified laws of emergency state; third, to make up one-way law. In China, the related contents of administrative emergency power are embodied in the constitutions, laws and one-way laws.Before we discuss how to regulate administrative emergency power, we should consider the reasonableness of regulating administrative emergency power. Leaving aside the misuse of emergency power will bring about what kind of disasters, even the correct exercise will also bring about some side-effects. Better measures of regulating administrative emergency power are to make up restraint mechanism that can be enacted before the crisis except that carefully exercise discretionary power. All powers must be controlled to bring it into conformity with the principles of operation and there is no exception to the executive of emergency power. Apart from the general principles that are needed to comply with when executive the powers, there are three striking principles: the first is the principle of administration by law, which is concrete manifestation of the principle of legality in the area of administration. We can not detach from the primary principle--- administration by law---because of the characteristics of the expansion of administrative power in special state, otherwise, even we eliminate the emergency state, another disaster of public authority trampling on the rights of private; the second is the emergency principle, in surface, the emergency principle is a breakthrough to the principle of administration by law, but its essence is a beneficial complementation and change of the principle of administration by law; the third is the principle of proportionality, which is one of most effective principles that constrain the violation of administration power, the current system is not perfect, provides lag and individual differences, which determines that there exists a space of discretion in the executive of emergency power, discretion is inevitable, then how shall these executive of discretionary power conform to our expections? The principle of proportionality must be observed so as to form a proportion between"measures"and"goals".After rationalizing the need of applied principles, the author makes efforts to expound that regulating administration emergency power need to be carried out in the constitutional framework. A comprehensive review of the constitutionality of emergency powers views from different perspectives. One view is that the emergency power conforms to the constitutions; another view is that the existence of the emergency power is a denial to the constitutions. The author thinks that the emergency power conforms to the spirit of the constitutions; it is a privilege for both constitutional norms and is not bound by constitutional norms.To achieve effective power regulation, we must first ensure the legitimacy of the power resource. In the laws, such problems as the connotation, extension of emergency state, the subject that requires confirming the emergency state, the power subject that has decided to enter emergency state, the declaring subject, the purpose, subject, scope, boundary, duties and limitation of the executive of administration emergency power shall be specially pointed out.The check-and-balance power. Restriction is an activity of restricting and limitation of the illegal operation of other powers. Using powers to regulate the effectiveness that exerted in the administration emergency powers, which is too inferior to bear comparion with any other supervisory means. The supervision of the highest power organs can't provide adequate powers to exercise the supervisory authority. Neutrality of the judiciary departments has made insufficient judicial supervision of administration power alienation occurred. The author believes that the establishment of public welfare litigation system shall make it into the fields of regulating administration emergency powers.Some civil rights under the state of emergency have been more limited than usual; some rights are exactly the opposite. Private power to regulate public power system is an important means of regulating administration emergency powers, to require minimum standards of human rights, endow citizens the right to resist an emergency, the media playing a supervisory role. The variety and versatile forms of the subjects of private power has advantages, and it is a bottom-up supervision, which has a strong democratic nature.The thorough study of the related problems of administration emergency powers in China will certainly promote the development of mechanism of emergency state in China and shall improve the legal system of administration emergency state and play a positive role in strengthening legality in China.