On The Control Of The Executive Emergency Powers Law

SARS events such as the Indian Ocean tsunami crisis had been fully shown that social and public affairs have always presented both normal and abnormal status. Administrative body must not only bear the normal management of public affairs, the state must also undertake the abnormal management of public affairs. This requires administrative body to use emergency powers in crisis situations. In March 2004, the amendment bill of constitution was passed and the emergency legal system was established. In June 2006, sudden incident responsive law (draft) has been the initial examination of the 22nd meeting of the Standing Committee. The Law Committee and Legislative Affairs Commission have been investigating, extensively getting social opinions, and speeding up the draft. It helps the prevention and reduction of the occurrence of unexpected incidents. It will play an important role for controlling, reducing and eradicating the social harm emergencies caused, protecting people's life and property safety, the protection of national security, public security and social order. The administrative system to improve emergency powers is not only a major theoretical issue, but also an important practical issue.This paper studies how the administrative power is controlled under the emergency conditions. As the power can easily be abused, even in a crisis situation, emergency powers could easily be abused. Emergency power is generally accompanied by the creation of an emergency arose, the personal dictatorship in the country is more frequently used, no binding, but since the implementation of the constitutional system, the requirements of the state law, the rule of law and the system has been gradually improved. In accordance with the principles of administrative law, the state administrative organs and the conduct of civil servants should be accorded with constitution and regulation. There is no law and there is no administration. Although the emergency powers in the state have experienced some changes in their implementation of urgent necessity, there will be a crisis government and constitutional dictatorship. Expansion of emergency power even breaks through constitutional constraints. The constitutional guarantee of the people's basic rights, freedoms and so on, is forced to suspend. From the point of view of constitutional and administrative law, the state government is based on the rule of law and democracy, and more urgently needs to strengthen the control of administrative law, which complies with the creation of the emergency powers in the first place.This paper consists of three parts:The first part is the introduction to this article. First, the concept of emergency powers, the definition and theoretical basis of analysis is shown, pointing out that the country is gradually moving toward the rule of law, the administration can not go beyond the emergency powers in the Constitution, above the Constitution. Aims of emergency power are to restore the normal social order and protect the people's rights. Secondly, the necessity for emergency powers that is existed, that the emergency powers granted to the government is to overcome the limitations of the lack of efficiency, to resume normal constitutional order. Finally, strengthening of executive power is a double-edged sword. Its legitimate exercise will be able to provide the necessary procedures. However, it can easily be abused and basic human rights of citizens' are Violated. Therefore, the exercise of emergency powers should follow four basic principles.The second part shows that the natural disasters in today's society, the economic crisis and terrorist activities are frequently happened. It is necessary to strengthen executive power under the constitutional framework of the system. The exercise of emergency powers should be included in the administrative law track. The following steps are included: emergency conditions must be a clear legal definition, Chief of emergency powers to speed up the legislative process. Emergency powers must be given legislative system and judicial oversight. We must strengthen the relief of the parts' rights. The chief offenses of the emergency powers are punished. People have rights to know the relative loss of the right about compensation, oversight, the right to confront the emergency. We prevent the abuse and dictatorial exercise and relaxation of emergency powers in order to respond to emergency situations on the normal order, the legitimate rights, interests of its people and the enormous threat. Under the status of emergency, we must resume normal production and life and the legal order to maximize protection of the legitimate rights and interests of the people.The third part is about the discussion on the control of the executive emergency powers in China. Pointing out that a good law, from the source to prevent the illegal and improper exercise of the emergency powers has played the role of prevention. Emergency power is exercised clearly by the administrative procedure, which is to improve the emergency procedures and improve judicial oversight mechanisms. Most countries experiences show that control judicial supervision over the administrative emergency powers is last line of defense.