Research On Protective Restrained Measure

After the enactment of the Administrative Coercive Law,the concepts of administrative coercive measure were unified from legislative angle.However,one of those administrative coercive measures which are applied universally during daily enforcement haven't been taken seriously in theoretical research,nor in legal regulation.This kind of administrative,which is protective coerce measure,coercive measure means administrative organizations coercing administrative subjects out of protecting their right of life and health as well as public interests.Protective restrained measures benefit and burden administrative subject at the same time,meanwhile it could achieve the purpose of protection through coercive means.At present,the research on protective restrained measures is not systematic and in-depth.Issues such as relevant laws and regulations are not clear,procedure is not specific,relief system is imperfect leads to the necessity to study it systematically.The first part of this article defines the concept of protective restrained measures,mainly studies its definition,nature,constituent elements,and analyzes the related concepts.The second part discusses how to prove the rationality of protective restrained measures from the perspective of human rights protection theory and legal fatherly doctrine,and then resolve the paradox of the existence of protective restrained measures,and also point out that the protective restrained measures should have certain limits.The third part is mainly about studying protective restraint system in Germany,Japan and Taiwan,and through the comparison with our system,we draw the reference of the extraterritorial system to our country.The fourth part focuses on the current situation of China's protective restraint system,and analyzes its shortcomings in entity regulations,procedural rules and relief systems.The fifth part is the construction of the system of protective restrained measures in our country.Based on the study of extraterritorial system and national system,the article puts forward some suggestions on how to perfect the protection restraint system in our country.