Research On The Emergency Law

With the development of the society, emergencies occur frequently with a trendecy of complication and heavier consequence. Thereafter, it has become a serious problem for every country to deal with. We must rely on the government to prevent and manage emergencies, or else common property, public safety and public order, even personal asset, civil rights and civil liberty cannot be protected properly. But if the acts of government are not effectually controlled by the law, it can be uncertain to reduce the hazard of emergency, and what is worse, an uncontrolled, constantly changed and straight administrative power is an enemy to civil liberty. Thus, it is required to rule by law for emergency. Emergent adminstrative power, which is always ignored by people, reflects the power of law most. Emergent adminstrative power is even a touchstone of Rechtsstaat. Thus, a system to allocate administrative rights and relative party rights properly according to the Constitution, anministrative law and basic law principles becomes the keypoint for the government to prevent and manage emergancy rationally and effectively. So it has an important realistic significance and obviously theoretical value to research the Emergency law systematically and intensively.There are five parts except for the introduction:Part One: The concept of emergency state and a brief introduction to the legislation in and abroad. By the definition of the emergency state in the Emergency law of some countries, as well as the definition proposed by some Chinese scholars, we can see that emergency state is actually a legal state, not an actual one. On that basis, the author differentiates and analyzes the relationship among the outburst, kaigiam, state of war and emergency state, and summarizes the characteristics of emergency state. Meanwhile, the author summarizes the four ways of emergency legislation by introducing the emergency legislation in the America, Turkey, England and Russia and synthesizing the experiences of that from some other countries. On that basis, the author analyzes the legislation of emergency state in China, summarizes the defect, that is: diverse sources, and lack of principle basic law.Part Two: The basic principles of emergency law. Emergency law is not generic law, social order should be the overwhelming value here, so the basic principles of emergency law are different, including: the principle of efficiency, the principle to rule by law, the principle of proportion, the principle of public, and the principle to guarantee human rights.Part Three: The administrative emergent power in emergency state. In this part the author introduces the government division of work on emergency, that is, normal administrative power prevents the emergency, and urgent administrative power manages the emergency. The function of urgent administrative power is deficient as the following: it has a bias in favour of dispersive and professional organ and against integrative and coordinate organs, in favour of temporary organs and agsinst permanent organs, in favour of manage peroid and against the prewarning period in the allocation of urgent power. These problems have been settled down after the Contingency Law to Emergencies were issued.On the basis of introducing the two ways, this part analyzes in detail the content and characteristics of administrative emergent power.Part Four: Restriction and guarantee to human rights in emergency state. In this part, the author elaborates on restriction and guarantee to human rights in emergency state. The ultimate purpose to restrict human rights in emergency state is to guarantee liberty and human rights. But there are some rights, such as the right to life, the right not to be slaved, the right of human treatment, the right of free from retroactivity, and the right of religious belief, are inviolable. To keep these rights away from unnecessary violation, people should be vested the right to know, the right to supervise, the right to get urgency aid, the right to apply administrative reconsideration or to lodge a complaint, the right to compensate special loss and the right to claim for damage compensation.Part Five: Thoughts on the legislation of emegency law. Now it is quite necessary for China to complete the legislation system of Emergency Law and formulate a uniform emergency law on the legislative level. It clears the manage principle and method of different emergency state, helps the government to carry on work and helps with the protection of public rights. The nomologica basis of emergency legislation is: on the basis of the means of legislation to construct a legal guarantee system for emergency state to achieve a balance between the power inside the government and between the gevernment power and public rights in certain social background.There are some problems to formulate the Emergency Law: firstly, this law must be coordinate with the Martial Law, Contingency Law to Emergencies. Secondly, we should establish a prevention mechanism to emergencies. Thirdly, we should learn from the legislation experiences abroad and the treatypact and agreement we signed with other countries.