Research On The Boundary And Regulation Of Executive Power On The Restriction Of Private Property Right

The COVID-19 outbreak in late 2019 has put our country into a state of emergency,which is different from a state of extreme emergency and far from different from a state of war.Under the emergency situation,the administrative authority should abide by the rule of law and carry out epidemic prevention and control on the track of the rule of law.Under the epidemic prevention and control,private property rights are limited to some extent.Emergency expropriation,an important government response to COVID-19,is a classic example of executive power restrictions on private property rights.In the state of emergency,the government has its legal basis and practical basis for emergency requisition.At the same time,the government also has specific legal limits for emergency requisition and emergency requisition should be carried out within the boundaries of the administrative power.The boundary connotation of executive power is the extent to which the administrative subject restricts the administrative counterpart.The boundary is divided into substantive boundary and formal boundary.The substantive boundary is the public interest,that is,the executive power must be for the public interest to carry out emergency expropriation of private property.However,the basic material means of life to maintain the survival and dignity of citizens shall not be expropriated for emergency;Formal boundary means that administrative subjects should abide by the principles of legality,proportionality and due process when taking emergency requisition.It is necessary to determine the boundary of executive power,which can effectively balance public interests and private rights.The executive power cannot delimit the boundary for its own power operation,but it can delimit the boundary directly for the executive power through legal reservation and strengthen the boundary through judicial judgment.During the epidemic prevention and control,the government has breached the boundary to restrict the private property rights.For example,the government of Dali City"detained" the masks purchased by citizens in Cixi city,Zhejiang Province.The reason why it occurs is that the imperfect emergency requisition system,unclear connotation of public interests and lack of external supervision.In order to regulate the behavior of administrative power breaking through the boundary.Firstly,it is necessary to improve China’s emergency requisition system,including emergency requisition procedure,time limit and compensation standard.Secondly,the connotation of the public interest should be relatively determined,and the public interest should be relatively cleared by excluding the non-public interest.Thirdly,we should strengthen the external supervision of emergency requisition and restrain the emergency requisition behavior.