On Administrative Enforcement In A Number Of Issues

With the establishment of grand general plan on ruling by law, building a law-based government, implementation of administration according to law has become all the common pursuit, administrative compulsory execution as a system of administration of a link, has attracted more and more people's attention. Administrative compulsory execution refers to the relevant state organs, administrative citizens. With the establishment of grand general plan on ruling by law, building a, corporation and other organizations that refuse to perform legal effectiveness obligation determined by the administrative decision, take statutory means and measures according to its mandatory obligations or obligations reached with the same state of the system. As an important means of administration and safeguarding social order, if administrative compulsory execution has not been scientific exercise will possible encroachment the rights and interests of private party. Therefore, how according to law, scientific and rational allocation of administrative power, in accordance with its statutory authority and procedures, will be important for the achievement of purposes of the administration and the protection to the private party's legitimate rights and interests. And the basis of the "right, there is relief" in the theory and responsibilities consistent principle of the rule of law, reasonably design administrative relief system, as pursue the administrative responsibility as relief the legitimate rights and interests of private party to protect them.Within the framework of the China's legal system, administrative organ and judicial authority are responsible for the realization of the rule of law for different tasks: judicial authority adjudge centrally, passively, to exercise jurisdiction, and the administrative organ will use their executive powers to take the initiative for national and social management. Efficiency is the pursuit of administrative power and the judicial power is concerned about justice, and the pursuit for the value of justice and efficiency, reflected that the administrative compulsory execution system designs are different. Britain and the United States in "judicial priorities", "judicial control" concept dominated, adopt the model that administrative compulsory execution implementated by judicial authority, and Germany, Austria, Japan and China's Taiwan region, administrative compulsory execution implemented by administrative organ. These two different models reflect the different national legal traditions, culture and political system's differences, they also reflect the different concerns for the value of fairness and efficiency. Of course, both administrative enforcement models are suitable for the country's basic national conditions, it is hard to say which is better. In China, based on the legal tradition and administrative law theory, we construct a model that the court is requested to enforce the execution while it is an exception for the administrative agency to perform. After 20 years of judicial practice, China's administrative compulsory execution system has been perfected and development, and has made certain achievements. However, we have to recognize that there are serious shortcomings in the administrative compulsory execution system of China. For example, there are many controversies in the concept of administrative compulsory execution and the relationships of the related concepts. In particular, there are also many controversies in that how to understand the nature of administrative compulsory execution, what is the administrative power belonging to and the model of the administrative compulsory execution. Besides, the regulations of the administrative compulsory execution procedures are careless and there are not explicit regulations of the relief to administrative compulsory execution. These shortcomings to the rule of law in our country, are significant obstacles.In this paper, aimed at the theoretical focus of the above issues, combining the theory and practice of rule of law in the current situation in our country, based on analysis of the foreign theory and practice for the private party's protection and improve the administrative efficiency, writer establishes his opinion, to construct a new model that the administrative agency to perform the execution while it is an exception for the court is requested to enforce. Meanwhile, the paper also addresses the existing problems in the procedures of administrative compulsory execution, establishing a scientific and reasonable proceedings. The problems in the relief of administrative enforcement, based on introducing foreign relative theories, from the two sides of law and theory, demonstrated administrative behavior's justiciability.