Research On Configuration Of The Power Of Administrative Compulsory Enforcement

Administrative compulsory enforcement is to realize the purpose ofadministrative management and maintain public order in the form of nationalcompulsory force, whether its configuration is reasonable or not refers to theestablishment of government authority and the safeguard of fundamental rights ofcitizens. Configuring the power of administrative compulsory enforcement, meaningwhich state organ owns the power of administrative compulsory enforcement, is inbasic position compared with administrative enforcement mode, procedure, remedyand responsibility. Therefore, it’s worthwhile to study as a primary issue in the processof administrative compulsory enforcement.As one of the trilogy of administrative law in China, Administrative EnforcementLaw was promulgated after12years’ legislative history. The law didn’t adopt thereform proposals in academia and continue the old model, namely, it should givepriority to administrative organs’ applying to the courts for compulsory enforcementand be supplemented with administrative organs’ self-execution. This configurationmode in which judicial authorities owns dominated position has exposed obviousshortcomings in practice. For example, the courts can’t execute administrative organs’excessive application in the conditions of increasingly heavy judicial pressure; theadministrative organs have shown weak ability, low efficiency, abuse of power and theultra vires in the process of compulsory enforcement; some administrative counterpartsneither fulfill the due obligation nor Institute administrative reconsideration oradministrative lawsuit for remedy. The model suffers much suspect and needs urgentreform in response to the realistic predicament. Relative to mature theory in foreigncountries or regions, the theory relevant to administrative compulsory enforcement inChina such as the power nature, value orientation and standard of configurationfollowing many disputes and differences isn’t systematic and perfect. Its obviousconsequence is that the legislation lacks theoretical support.The purpose of the article is to reform the model about configuration of the power of administrative compulsory enforcement in China. The author hopes to clarify thepower’s nature and the nature’s relation with mode selection of configuration. To solvedomestic implementation difficulties, the author intends to raise a new model aboutconfiguration of the power of administrative compulsory enforcement which iscoincident with domestic situation and beneficial to coordinate the contradictionbetween administrative efficiency and civil rights.This paper consists of three parts which is preface, body and conclusion. Thepreface mainly introduces research background of the article involving the problems intheory and legislation. The part of conclusion summarizes article mentality andemphasize assertion about reform of the current configuration mode. The bodyincludes five chapters and specific contents are as follows:Chapter one, basic theory of the power of administrative compulsory enforcement.This chapter deals with the concept and nature of administrative compulsoryenforcement.Chapter two, current situation and analysis of the power of administrativecompulsory enforcement in China. The author respectively introduces presentlegislative situation, relevant history, cause of formation and problems triggered by themodel.Chapter three, analysis and reference about configuration of the power ofadministrative compulsory enforcement. The chapter mainly compare different modelsand particular regulation of the representative countries belonging to two legal systemand summarize their valuable enlightenment and experience.Chapter four, constructing the model about configuration of the power ofadministrative compulsory enforcement in China. By commenting on the views aboutreforming the current model in China, the author advocate a new model in which theadministrative organs will play a leading role and the behavior of referee and executionwill be implemented by different organs.Chapter five, design and improvement of the relative system in the condition ofnew configuration model. The author specifically design the standard of configurationand advocate to supervise and restrain administrative power by means of establishingspecialized executive authorities and improving the way or standard of court’s review.The article’s research methods include literature analysis, comparative analysisand empirical analysis. By using the method of literature analysis, the author couldunderstand the current situation of basic theory and legal system relevant to the power of administrative compulsory enforcement; Useful reference and inspiration wasobtained by comparing and analyzing foreign countries’ configuration mode. Thementality in which referee and execution will be implemented by different organs wasbased on the empirical research.