On Basic Theory Of Non-lawsuit Administrative Execution

Non-lawsuit Administrative Execution refers that the administrative relativeparty within the statutory time limit does not fulfill the administrative organ specificadministrative behavior based on the determination of specific obligations, theadministrative organ or the holder has the right to apply to the people’s court, thepeople’s court after non judicial review ruled that the enforcement of the law or legalsystem. The administrative execution system design original intention lies inintroducing judicial power to effectively guide the administrative implementation ofthe proper exercise of power, to avoid the unlimited expansion of executive powerand abuse. In theory it is blameless, but in practice there are many problems.Whether the legislation lag or insufficient attention to academic research, to a largeextent, or from our for the basic theory of Non-lawsuit Administrative Execution islimited, the lack of understanding. It decides the law on Non-lawsuit AdministrativeExecution related topics may not make substantive progress. To analysis and clarifythe implementation of the relevant basic theoretical problems, strong support for thefuture development of Non-lawsuit Administrative Execution of theory developmentand system to obtain the basic law, and make it in accordance with the principle ofcontinuous access to practice and theoretical progress, has important significance.China academic circles about the Non-lawsuit Administrative Executionconnotation mainly have three kinds of representative views, namely, apply to thecourt for enforcement action theory, control theory and implementation of litigationto enforce the theory. The Non-lawsuit Administrative Execution of the scientificdefinition of the meaning, should exclude the factor of administrative litigation andlitigation execution control that distinguish, exclude the administrative organ itselfhas the power to execute circumstances. The external enforcement said to draw theboundaries, and expand the Non-lawsuit Administrative Execution of the applicationsubject and make up for court enforcement said deficiencies. The maincharacteristics of Non-lawsuit Administrative Execution includes, executive subject limited to the people’s court, start the program must meet certain conditions, themain basis has the dual attributes of objects, the implementation is very extensiveand complex. Perfect function of Non-lawsuit Administrative Execution is the properexercise, limit and the standard of administrative power, protect the legitimate rightsand interests of the administrative counterpart, the basic strategy of implementingthe governance system and management modernization.The Non-lawsuit Administrative Execution system has important significanceof attributes, because its characterization of the legislative spirit, value orientationand operation rules of different. At present, the academic circles about theNon-lawsuit Administrative Execution point of view mainly includes the nature ofadministrative power, judicial power said property say and the double attribute, andthe double attribute for the majority, but the double attribute is not desirable, it willcause the Non-lawsuit Administrative Execution in the relevant legislation, lawenforcement and judicial level of confusion. In the system properties of Non-lawsuitAdministrative Execution, must hold the theoretical position clear, from the point oforigin, the exercise of power, on the basis of objective, content, nature ofadministrative power is more recoverable, but its specific content should be revisedtheory.To study on Non-lawsuit Administrative Execution of law foundation is veryimportant, which can be traced back to the source through the Non-lawsuitAdministrative Execution, to help understand the basic theoretical framework ofNon-lawsuit Administrative Execution, and then to choose theory or system ofnon-litigious administrative execution of other aspects to provide the necessaryreference or standard. On the existing point of view, the legal basis of Non-lawsuitAdministrative Execution mainly consists of the power balance theory, the protectionof human rights theory and the theory of right relief. According to the developmenthistory of Western political theory and jurisprudence and management practice ofstate, through the legal system construction to realize the power restriction andregulation of power, has been proved to be relatively effective mechanism design.Legal basis set of Non-lawsuit Administrative Execution system first lies in therestriction of administrative power and judicial power use. In a sense, to maximize the realization and protection of human rights should become the ultimate pursuit ofmodern country governed by law. As the basic legal value goal in the protection ofhuman rights in the background, non-lawsuit administrative law enforcement systemwill play an important role in protecting the basic rights and interests of theindividual, but also become an important support to relief rights theory.In the world scope, modes of operation of Non-lawsuit AdministrativeExecution system mainly includes the judicial power and executive power dominanttwo leading. USA, Britain, France to take judicial leading mode, while Germany,Japan and China’s Taiwan region has taken the dominant mode of administrativepower. The basic pattern of Non-lawsuit Administrative Execution law throughoutthe world in the legal system, regardless of the judicial power is dominant, or to theadministrative power is dominant, which are not divorced from the historicalevolution, the specific legal tradition, social environment, legal framework and otherfactors. Our future Non-lawsuit Administrative Execution system construction modeneeds to focus on the enforcement of administrative to distinguish types of interests,along the two lines run parallel steadily, not only to ensure the efficientadministration of the social economic life, but also to ensure the administrativeopposite party great interests in administrative adjudication process and execution ofjustice.