The Conflicts And Coordination Between Administrative Emergency Powers And Civil Rights In Public Emergency

Emergencies that occurred in the first decade of 21st century have left us a deep impression such as the 2003 SARS,2008-year Earthquake, the 2010 Drought in the southwest of china and so on,which brought a great deal of damage to the daily lives of people. We can see not only the government'defect in respond to emergencies, but also the importance and urgency of emergency response.Emergency response has become a hot topic in society today. In August 2007 the "Emergency Response Act" marks that China on abnormal regulation of the social order has a legal basis,which is China's protection of human rights and the concrete embodiment of practicing the rule of law, but also our government try to fully absorb 2003 "SARS "lessons and learn from the rule of law based on the experience of developed countries, legislative attempt to effectively integrate the country's existing emergency response systems and resources to adapt to the context of economic globalization, an effort to the needs of the new emergency response.The Act helps prevent and reduce the occurrence of emergencies, eliminate the social harm caused by emergencies, which will play an important role in protecting people and national security, restoration of normal social order and so on.Administrative emergency powers mainly means the government emergency disposal authority:when the war, internal rebellion, severe natural disasters affecting the national economy, and epidemics, and severe economic crisis, political unrest and other emergencies happen, according to the Constitution, a state of emergency law, martial law, war law, police law, administrative enforcement of law and so on takes measures like the mobilization, military control to stop certain provisions of the Constitution and the implementation of the law even restricts or prohibits certain citizens to exercise freedom of law. Administrative emergency power is not a modern phenomenon, since the date of the government has existed. From the historical point of view, whether in ancient Rome, "constitutional dictatorship", the common law system of "martial law" or France's "siege", the German "Weimar Constitution" under the president's executive order also involves the application of the government emergency powers. Only to modern times, Administrative emergency powers go on the road of the rule of law.In responding to emergencies, Administrative emergency powers is the most effective public authority, the conflicts between Administrative emergency powers and the civil rights is that we can not evade. The rule of law is based on the dual constraints on the administrative emergency powers and civil rights to prevent the private rights against public power.However, this constraint can not make the administrative emergency powers as a universal way to handle emergencies, it can not be used to harm the legitimate rights of citizens. Otherwise, the administrative emergency powers will become a sin.In emergencies, citizens are direct victims, who are the object that should be protected. As the agency of emergency treatment-the government has the responsibility to protect the rights of citizens. However, some characteristics of emergency and constraints technological means, the Government in responding to emergencies, often can not make full preparations for the exercise of administrative emergency powers; at the same time the administrative procedure is not perfect, the compensation for civil rights does not state clearly, so the conflicts between emergencies and civil rights must exist, and it is an important issue to handle the relationship between emergencies and civil rights in responding to emergencies and that when Government exercising emergency power should respect the basic spirit of Constitution and protect the rights of citizens from arbitrary violation has become national consensus.This paper starts from the following three chapters:The first chapter introduces the necessity and legitimacy of administrative emergency power,followed by principles of exercising administrative emergency powers such as the principle of administration by law, the principle of proportionality, the principle of administrative procedures, administrative contingency principles; it also introduces the exercising of administrative emergency powers including the start, setting, implementation and guarantees of the administrative emergency powers; the guarantees of the administrative emergency include the physical protection and legal guarantees.The second chapter is about the conflicts between administrative emergency power and civil rights, first introduces that in emergencies administrative emergency powers and civil rights, essentially reflects the conflict of public interest and private interest, the conflict between liberty and order, public power and private rights;second, introduce administrative restrictions on civil rights, including the administrative emergency powers limits on personal rights and restrictions on its citizen property. The restrictions on personal rights, mainly talks about the restrictions on civil liberty; and the property restrictions mainly talks about the requisition on civil property.Chapter III talks about how to coordinate the conflicts between the administrative emergency powers and civil rights, first introduces the protection of the rights of citizens, including the protection of personal rights of citizens and the protection of property of citizens; second describes the restrictions on administrative emergency powers, including state supervision and social restrictions in two areas, mainly in hope that improving administrative legislation, strengthening institutions and social supervision to limit administrative emergency powers.In short, it is our eternal theme to strengthen the constraints of administrative emergency powers to protect the legitimate rights and interests of citizens. Government in the exercise of administrative emergency powers should deal with civil rights seriously; give reasonable compensation to civil rights violations, if necessary, including civil judicial relief. It is inevitable to face the conflicts between administrative emergency powers and civil rights when dealing with emergencies. The government should make reasonable use of administrative emergency powers, the minimum violation of civil rights based on the reasonable solution to the emergencies; at the same time, strengthen the supervision of the administrative emergency powers, civil rights remedy, make the administrative emergency power under reasonable control and in the lawful limits, which is not only the requirement and reflection of the rule of building the lawful society but also the target that we are pursuing.