Research On China's Administrative Enforcement Model

In today's world,according to the difference of various countries' state system,historical tradition and the concept of the rule of law,the mode of the enforcement of administrative coercion was classified as model of judicial enforcement,model of self-enforcement by administrative organs and model of mixed enforcement.However,the court is not the final and distinct enforcement body in both model of judicial enforcement and model of self-enforcement by administrative organs.Under the concept of power separation of the decision and the enforcement,the fundamental distinguish among the three kinds of modes is the difference of executive body of the confirmation power.Our country is the typical country of mixed enforcement mode.The mode is definitely divided into non-litigation enforcement by the court and self-enforcement by the administrative organs,but there is no allocation of confirmation power and enforcement power of the enforcement of administrative coercion between court and administrative organs.Besides,the court targeted the administrative actions that overdue statute of limitations for censorship in the review of non-litigation enforcement,which betrays the stability principles of law.The court's directly participated in the enforcement of administrative coercion betrays the role definition between the judicial power and administrative power by the constitution,which makes the court's justice questioned in practice.Out of the establishment problem of court in our country,the court is short of enforcement capability,which leads the period of enforcement too long that affects administrative efficiency,and almost impossible to realize the goal of legislation of the non-litigation enforcement.Domestic academic circles have carried out a lot of beneficial explorations for legislative reform based on the reference to enforcement modes of other countries,and the objection is not big that judicial organs in charge of the referee and administrative organ in charge of enforcement in general.But they are still unable to agree on the body that administrative enforcement decisions should belong to,which leads to a controversy between the mode of "the referee before enforcement" and the mode of"the enforcement before referee".The mode of "the referee before enforcement" learns more lessons from model of judicial enforcement,which stipulates administrative organs enforcement behavior should according to judicial sentence.The mode of "the enforcement before referee" is a mode of self-enforcement by administrative organs,which means the powers of confirmation and enforcement both belong to administrative organs,and the court supervises the validity of the enforcement measures of administrative organs by jurisdiction.Based on the present situation of the administrative enforcement of law and trend of legislation under the domestic system of enforcement of administrative coercion,with an analysis of common practice in today's world,the text deems that it is rational and realistic feasibility to award the decision of enforcement of administrative coercion to administrative organs combining with ideas and theories of the Administrative Law.Based on the judgment that the mode of self-enforcement by administrative organs is more suitable for our country,finding out the barricade in legislative reform,the test propounds relative legislative proposals aid to promote the building of the mode of self-enforcement by administrative organs for primary.As exceptional cases,the mode of "the referee before enforcement" is applicable to enforcement of administrative coercion like land expropriation and house moving cases,which are the most sharp social contradictions and the most difficult in enforcement presently.Thus opinion is according to the Theory of Social Risk Regulation,which advocates the judicial organs and the administrative organs having shared social risk prevention duty that judicial organs in charge of referee and administrative organs in charge of enforcement.