On The Essence Of China's Administrative Entrust

Administrative penalty as a police power, in principle, can only be legally entitled to the administrative organ or the organization authorized by the laws and regulations to exercise. With the diversity and width of the executive powers, the administrative organ may sometimes be inconvenient or can not self-execute the authority. Thus, it is necessary to allow them to entrust the administrative penalty decision-making power delegated to non-administrative organs according to the laws or regulations within the extent of competence. However, at present China's administrative law scholars follow the civil law in the "entrust" theory to solve the field of administrative law "entrust" problem, and such a research route can not fundamentally reveal the nature of China's administrative penalty entrust. In view of this, based on the relationship between the state and administrative organs, this paper maintains that China' administrative penalty entrust is essentially a "police power entrust" .The non-administrative body organizations entrusted by the administrative organ in the exercise of the right of administrative punishment have the same legal status as the administrative organ, which are enabled to make their own administrative act on behalf of themselves and be independent of assuming the resulting legal liability. On this basis, introducing"the exercise of public power entrusted " theory in Germany and Taiwan of China, combined with the case of the higher education organization as the defendant in the administrative action, the paper proposes that "the exercise of public power entrusted" can integrate of our administrative law theory of "authorization" and "entrust". And this is an alternative path. Finally, this paper reflects on the problems in the study of China's current administrative penalty.