On Administrative Enforcement

Administrative enforcement is a very important system in the field of administration and one of the important components of the compulsory act. It plays a vital role in guaranteeing the realization of the duty decided by administration and maintaining social order. But administrative enforcement takes compulsive means as its basic characteristic and easily causes the infringement of the administrative opposite party's rights and interests. As administrative affairs become more complicated and awareness of civil rights is upward, the legislation of administrative enforcement must face and solve the following problems: How to define the most effective, the most severe, and the most dangerous power of administrative enforcement? How to achieve a balance between ensuring government authority and protecting civil rights? How to show loving concern for the disadvantaged groups in particular under the current situation of constructing a harmonious society? How to embed human concern and human nature into it? This thesis takes the Law of Administrative Enforcement (draft) (hereafter refers to as the draft) as the main researching angle of view and combines the current situation of the legislation of administrative enforcement at home and abroad to explore the pattern of administrative enforcement which both conforms to the principle of the administrative law and suits Chinese national condition and makes the administrative system more perfect. This thesis also provides some useful reference to the legislation of administrative enforcement of China. This thesis focuses on the domestic research results that already have been achieved and the summarization of the practice and also pays attention to the comparative analysis of the tendency of two major law systems at home and abroad. Based on the value judgment, Chinese current situation and the comprehensive evaluation, this thesis proposes that the draft should be further revised on the premise of maintaining the stability of basic system.The main text is divided into five chapters:Chapter 1 defines the concept of administrative enforcement by comparing the concept of administrative force with the concept of administrative enforcement as well as comparing the concept of administrative mandatory measurement with the concept of administrative enforcement to reveal the four basic characteristics of administrative enforcement.Chapter 2, by objectively analyzing the current social situation of China, suggests that the main focus of the legislation of administrative enforcement should not be the reinforcement of administration but the regulation of administration in order to avoid the abuse of the present administrative enforcement and make the enforcement of administration more practical, more powerful, more limited and more orderly. Through the comparative analysis of the tendency of administrative enforcement of foreign countries such as Britain, America, Germany and Austria, this thesis proposes that the value choice of administrative enforcement should be based on the national condition, should place emphasis on security and efficiency, should be based on citizen security and should take the administrative efficiency into consideration.Chapter 3 mainly analyzes the reason that the academic circles have three different understanding (executive power theory, judicial power theory, mixed power theory) about the nature of the power of administrative enforcement. The controversy is mainly due to the different definition of administrative enforcement, the complicated relationship between executive power and judicial power and the different understanding of the existing system of administrative enforcement. On the basis of the analysis of the difference and connection between judicial power and administrative power, the thesis suggests that the nature of administrative enforcement is a kind of mixed power that has dual nature: judicial powder and executive power. It gives priority to executive power, combining judicial power. The principle of defining the power of administrative organs and people's court depends on the standard of implementation and also takes into consideration the relative impact on the administrative opposite party'rights and interests.Chapter 4, by analyzing the current academic circles'different understanding about the pattern of administrative enforcement and comparing two major foreign patterns: administrative organ- centered pattern and judicial organ-centered pattern, holds that Chinese existing compound pattern of enforcement is suitable as a whole and conforms to the development trend of administrative enforcement of various countries and puts forward a proposal that the draft should uphold the existing system and there should be a further improvement on procedure. Chapter 5 makes a brief comment on the draft and gives a brief introduction to the principle of assurance of human rights, the principle of enforcement by operation of law, the principle of proportionality, and the principle of relief and responsibility that are all established by the draft. With regard to the dispute over the enactment of administrative enforcement, this thesis proposes that the provinces should not have more autonomy and the power of enacting administrative enforcement should be centralized in the National People's Congress and should be laid down according laws and administrative rules; on the basis of a positive statement on the draft, the thesis puts forward that the general procedure and urgent procedure should be made, the form of substantive examination should be made clear and the way of administrative enforcement should be detailed.