Research On Human Rights' Protection Of The Administrative Coercion

Enforcement is an important attribute of public power. Without the force power,it is impossible for a state to maintain the public order and achieve the political,economic and social goals. Using administrative coercion to limit the personalrights,property rights or other rights of the administrative counterpart thatviolates the administrative regulations or not implement the valid administrativedecision,the state could directly execute or enforcing the party to implementthe obligations that caused by the concrete administrative act,so that it couldprocess the management of the society. The system of administrative coercion isnecessary during the activities of the government. It is significant for enforcingthe laws,sufficient operation of the administrative authority and even the orderof the society and preserving the public interests. but concurrently,becauseof the attribute of the administrative coercion itself and the fact that theadministrative power of our China is extremely formidable,the public interestand the personal interest are not always balance in the system,especially thehuman rights of the opposing party of the administrative entity are easy to beinfringed by the administrative power. In the perspective of administrativecounterpart,considering the protection of the counterpart's rights,the authoranalysis the relation between the administrative coercion and human rightprotection of counterpart,the author holds on the opinion that the protectionof counterpart is the basic goal of the legislation of administrative coercionthroughout its whole process. For making the human rights could be confirmed,respected and preserved further,making the rational usage of the administrativepower so that it could gain the respect cooperation and understanding from theadministrative counterpart,and making the administrative coercion and thenon-compulsory measure could function mutually during the process of realizingthe law,the author makes some necessary analysis to the administrative coercion,raises the facts of the infringement of the human rights during the using of theadministrative coercion,and tries to give the solutions to the situation.There are four parts in this dissertation. In the first part,it will be thecomprehensive analysis to some basic doctrine related to the article. In termsof comparative study,the dissertation tries to make a scientific orientation on administrative coercion,human rights or other concepts,no matter it isdomestic or overseas; and it next is to sum up and point out the universal principleand commonness,so as to conclude that it is significant to protect human rightson the system of administrative coercion. The second part will mainly be theanalysis to protective institution of human right on the area of administrativecoercion. Through comparative,analytical methods,this dissertation comparesprotective institution of human rights between China and other legal areas,andfinally finds that: The system of administrative coercion of China,which isgreatly based on public interest,is necessary and reasonable to exist. However,it is easily found that such kind of Chinese system will lead to a violation tohuman rights when the administrative organs enforce the law illicitly and arbitrarily.Part three of the essay,which is based on the analysis of the part two,enumeratesmany problems existed in the current administrative coercion,and analyze thereason of the problem that human rights are easily be infringed in the processof administrative coercion. The mighty administrative power,the traditionalfavor to the public and collective interests and the insufficient normative actson the administrative coercion jointly lead to this problem. Part four of the essaytries to establish a human rights'protection mechanism in the process ofadministrative coercion. Basing on the resolution introduced by the ,and paying sufficient attention to the mighty powerof the administrative power and the weak power of the administrative counterpart,this part raises the essential question for human rights protection in theadministrative process: how to grant more protections to the administrativecounterpart while regulating the power of administrative authority. Finally,theauthor suggests that firstly,a firewall should be established between theadministrative body and its counterpart,secondly,more efficient and convenientprocedure rules should be introduced; thirdly,administrative coercion modeshould be improved from the power balance perspective. It is the author's sincerehope that the above-mentioned suggestions will be of some helps to the human rightsprotection in the administrative coercion process.