On Administrative Enforcement Mode In China

Administrative Penalties law, Administrative Permission Law and Administrative Compulsory Laware called “trilogy” of regulating and controlling administrative power. The significance of those three lawslies in their respective specification of the enactment and enforcement of administrative penalties,administrative compulsory and administrative permission and providing reliable law foundation for threemost important administration measures of administrative agencies. The issue for enactment of the threelaws marks the standardization of administration according to law in China, and what’s more important, theissue of compulsory law, which constructs the mode and procedure of Chinese administrative compulsoryexecution, is of great significance for the realization of law-based government and service-typedgovernment. During the draft, demonstration process and even after its issue, execution mode problem hasaroused heated discussion in academic circles and becomes one of the hot issues in present administrativeresearch.At present, there are three execution modes on the whole:“compulsory execution byadministrative agencies on its own”, which is mainly adopted by civil law countries,“apply for theadministrative compulsory execution of judicial organs”, which is mainly adopted by common lawcountries, and “compound compulsory execution of administrative and judicial organs”, which is seldomused，but according to many scholars, is adopted in China now. It depends on many factors about whichadministrative execution mode should be used in one country, such as the core factor which is the definitionof administrative compulsory execution right, value selection, public legal consciousness.The research is on the current administrative compulsory execution mode in China, and the focus is onits relative theory and to analyze its operation status so as to have a discussion on the redesign of Chineseadministrative compulsory execution mode. The paper aims to do research on current administrativecompulsory execution mode in China, makes analysis from two aspects of theory and practice, and givessome proposals on how to perfect current administrative compulsory execution mode in China.To be specific, the paper consists of three parts: First, it states the relative theory of administrativecompulsory execution mode, including its concept, type and the factors influencing the design; Second, itanalyzes administrative compulsory execution mode, including the status of its execution subject, legal consciousness of execution object, comment of theoretical circles and “judicial eviction”; Third, it comesup with the perfection conception, namely, precisely defining the nature of administrative compulsoryexecution power, redesigning administrative compulsory execution mode in China, and constructing thenew perfect supervision system..In fact, the key of administrative compulsory execution mode is how to define the nature ofadministrative compulsory execution right, concerning which there are three opinions: concept ofadministrative power, concept of judicial power, concept of compound power. Concept of administrativepower refers to the people’s court applying to do compulsory execution of administrative decision ofadministrative organs, and extension of administrative compulsory execution, while people’s court doesadministrative compulsory execution, in a sense, it is entrusted by administrative organs and does so onbehalf of administrative organs. In the case of concept of judicial power, when it is clearly stipulated in thelaw that administrative compulsory execution is done by people’s court, people’s court is exercising thejurisdiction independently, and the compulsory execution measure applied to judicial procedure. As far asthe concept of compound power is concerned, there is no simple discussion on the nature of people’s courtexercising the non-litigation administrative act, administrative power or judicial power, and it has thecharacteristics of two powers, since the non-litigation administrative act as execution is both theadministrative act of administrative organs and the result through judicial judgment. The paper thinks thenature of administrative compulsory execution right should be analyzed from the aspects of the wholetheoretical system of administrative law and power nature instead of putting it into administrativecompulsory execution mode. No power can be realized without its execution, neither does theadministrative power. The execution right should be part of administrative power, and compulsoryexecution right is the special means of execution right, so administrative compulsory execution right isdeemed as part of administrative power in the paper.On the basis of defining the administrative nature of administrative compulsory execution, the author,thinks, to further improve the administrative compulsory execution mode in China, it should be stipulatedthat “administrative compulsory execution right should be practiced by administrative organs, and for thecases, in which rights and benefits can not be compensated or redeemed actually after damage, it should notbe practiced by people’s court before examination.” during the future legislation improvement. In the long term, the compulsory execution mode of administrative organs on its own should be built. To build theadministrative compulsory execution mode, e should make top layer design from legislation, straighten outthe relationships among powers so as to make administrative power and judicial power perform their ownfunctions, exercise administrative compulsory execution procedure in the administrative law enforcement,let the procedural justice to promote essential justice and at the same time give full play to the judicialguarantee function of people’s court.