Research On Destructive Assistance And Its Legal Issues

This article draws from the two eases of "Super Mario" and "Chen Ming" to investigate whether it is appropriate to implement destructive rescue and whether we shall take responsibility when we do so.Destructive rescue,as its name implies,is rescue implemented by destructive means.It is a kind of beneficial administrative action because it focuses on rescue,but it is also a kind of interest-damaged administrative action because its means is invasive.According to the absorption of administrative actions,destructive rescue is ultimately recognized as a beneficial administrative action.The police is the main body of destructive rescue.Article 21 of the Law of Police gives the police a special rescue obligation.This kind of rescue includes more than destructive rescue.In essence,it is a kind of administrative assistance implemented by police.Destructive rescue is an administrative discretionary action in view of policed choice of the content,procedure,and time of relevant behaviors.In general,destructive rescue is a kind of administrative rescue that the police use destructive ways based on special rescue obligations.The author argues the legitimacy of destructive rescue from the following three aspects.In a practical sense,with China5s entry into an increasingly challenging society,moderm science and technology provide us with convenience as well as new risks,which brings obstacles to the implementation of rescue.So destructive means are inevitable.Although China has established an emergency rescue mechanism,the mechanism is still not that sound,not to mention the poor performance of some public service management departments.In such circumstance,the police are on duty around the clock and are characterized by "imlediate violence",making them the first choice for citizens in urgent need of help.From a theoretical point of view,the administrative legal relationship involved in destructive rescue is the relationship between the right of police and citizenship.The use of the policed power and the protection of citizenship are mutually dependent and exclusive.The two are contradictory units.The destructive rescue that the public needs is to achieve a dynamic balance between the two through continuous battle.While protecting the rights of citizens,it can also regulate the power of police.From a legal point of view,although there has not been a comprehensive legislation on the rescue,provisions concerning destructive rescue are even rarer,but from the Constitution,relevant laws and regulations,it is still possible to find some provisions for destructive rescue.It also provides basis for administration by law.In short,it is precisely the objective needs in reality,the corresponding support in theory and the general authorization in law that make the implementation of destructive rescue justified.The specific implementation of destructive rescue involves both theoretical and practical issues.At the theoretical level,the means of destructive rescue are invasive to civil rights.Therefore,it must be regulated in both physical and procedural terms.First of all,destructive rescue is an administrative discretion.In countries around the world,the basic principle of restricting discretion is mainly the principle of rationality or proportionality.However,compared with the principle of rationality,the principle of proportionality i5 more operational and can protect human rights better.Secondly,the police should implement destructive rescue by law.Procedural justice is“visible justicee”However,in judicial practice,there is no clear legal procedures on destructive rescue that can be enforced,while the principle of due process can be used to complement the program and to justify whether the program is appropriate.At the practical level,the implementation of destructive rescue must meet certain preconditions and should also follow certain procedures.First of all,the implementation of destructive rescue calls for the conditions for the implementation of general rescue,that is,he who needs rescue is in great danger(the police know or should know that he is in great danger),and the police shall not endanger the safety of himself or a third person.Apart from these,destructive rescue should also have two special conditions—the existence of barriers and the greater legal benefits of rescue than the legal benefits of destruction,which are determined by the objective situation at the scene and its own discretion.Secondly,all necessary programming practiced by the police should take the actual situation of the decision to be made into consideration.In general procedures,it is necessary to assess in advance so as to identify the situation on the spot and determine whether preconditions are adequate for implementing destructive rescue.And then try to improve efficiency by setting the on-site command rules in order to implement destructive rescue as soon as possible.In the implementation of the law,the body should comply with the principle of due process,i.e.explaining the reasons beforehand,listening to the opinions halfway and informing the right afterwards.At the same time,in view of the urgency of the objective situation,direct notification and concise language are indispensable.If the law benefits of life are in imminent,obvious danger and require immediate intervention,and the object of destruction is just the property,the emergency procedure is applied.Procedures such as hearings and explanations are omitted so as to implement rescue more decisively and more promptly.The design of any legal system must proceed from specific issues and must consider the goals pursued by the design.The fundamental goal of the destructive rescue system is to encourage the police to implement rescue for those in danger actively through proper allocation of rights and obligations.On the one hand,destructive rescue is a duty behavior,and it is an administrative action at the same time.The system can distinguish between responsibility and the exemption of responsibility effectively based on the proportionality and legal procedures of the duty,and helps to define the boundary of the police’s power in destructive rescue.Moreover,it is beneficial for the police to control their bottom line.On the other hand,it encourages the police to fulfill their obligation of rescue through accountability and gives powerful protection to the legitimate rights and interests of the police,which enhances the policed enthusiasm for fulfilling the obligation of rescue,and maximizes the expected effect of setting up a destructive rescue system.