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Research on the Administrative Coercion Ruled by Law

Author: DaiYongLiang
Tutor: CuiZhuoLan
School: Jilin University
Course: Legal Theory
Keywords: administrative coercion basic rights public power public rights private rights rule of law
CLC: D912.1
Type: PhD thesis
Year: 2008
Downloads: 831
Quote: 5
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Administrative coercion, fallen into the category of power act of losing interest, exists in real life extensively, therefore it is of very important significance to regulate administrative coercion by law. Concerning this, the article has explored and studied administrative coercion ruled by law from angle of jurisprudence.The whole article is divided into five chapters.Chapter one is general analysis on administrative coercion.This chapter mainly analyzes administrative coercion in general. Firstly, it expounds and demarks common definition of“coercion”and“administrative coercion”, and distinguishes administrative coercion, administrative punishment, judicial coercion and others. Basing on it, administrative coercion can be surveyed in view of administrative power and normalization, which is beginning with fundamental administrative power and legal norm to analyze relation between administrative coercion and others and to promote research of administrative coercion, taking rule of law as cut-in, on the level of jurisprudence. Secondly, through ontology’s inquiry of legal nature, coercion is abstract in legal nature and administrative coercion is realization of abstract coercion. There is a closely connection between coercion and administrative coercion. Administrative coercion is of very important significance to legal fulfillment. Lastly, through illustration of limitations of administrative coercion, it is not omnipotent, and legal fulfillment cannot rely on coercion completely, aiming to bring out a more comprehensive prospect to understand administrative coercion within the more wide scope.Chapter two is theoretical foundation of administrative coercion ruled by law.The chapter mainly analyzes theoretical foundation of administrative coercion ruled by law in order to ram theoretical root. Administrative coercion ruled by law is a basic request of state ruled by law and an inevitable historical trend. In order to make rules of administrative coercion into good law and play an active role in real life, it is necessary to carry out research on theoretical base of administrative coercion. Firstly, rule of law is deep mechanism of administrative coercion ruled by law, and human rights’protection is the inner cause of administrative coercion ruled by law. The above ideas are basic background and spirit connotation of administrative coercion. Secondly, power of state is not absolute, so administrative coercion cannot take strong power‘s operation as prude. Public interest is not absolute, and administrative coercion cannot take it as the sole aim. Rational administrative coercion must be tested under frame of relations between state power and citizens’rights, public interest and private interest. Lastly, administrative coercion ruled by law must have justifiable nature, and order, equality, liberty and efficiency will give justifiable supports for it ruled by law. Administrative coercion ruled by law can take rule of law to form operation order for power of coercion, can supply system arrangement to advocate equality, can insist on double wining of value towards efficiency’s seeking and human rights’protection and become limitation of liberty’s prohibition and shield of liberty’s protection.Chapter three is a practical analysis on administrative coercion.The chapter is a concrete analysis and has two aims, one is to strengthen recognition of administrative coercion and problems existing back of it, the other is to promote comprehension ability to theoretical foundation of administrative coercion ruled by law. Through positive research and microcosmic showing of typical three administrative coercions, the article expounds the existing problems and traps in real life to deepen understanding of operation of power of administrative coercion. Through exploring into details of causes and value deviation, which lead to serious problems of operation of administrative coercion, the chapter discloses the hide truth of vivid administrative coercion and completes theoretical aim of macrocosmic scene of vivid administrative coercions. Among the three, rehabilitation-through-labor takes order as orientation and is ignorant of liberty value, and urban enforcement agency’s detainment hides conflict between right of existence and administration. Compulsory move shows that an overall balance is needed between public interest and private interest at least. This existence mentions that every sole consideration will do harms to state, society or individual, hence we must deal with seriously. The chapter points out the key to question of administrative coercion through these hot issues lies in severe conflict between different values of aim. These conflicts are outwardly originated from different tactics and consideration of different subjects, however there are problems of theoretical foundation of administrative coercion in the final analysis. If there are no puzzles, questions and conflicts existed in the field of administrative coercion, legislation of administrative coercion must consider all causes, not only basing on solid theoretical foundation but also basing on experiences of legislation of administrative coercion abroad.Chapter four is a comparative research on administrative coercion.The chapter mainly introduces, analyzes and compares administrative coercion from Continental legal family such as Germany, France and Austria to Anglo-American legal family such as U.K. and U.S.A. in order to give helpful inspiration to China’s legislation. On part of execution of administrative coercion, Germany and Austria basically carry out mode of administrative agency sole execution, U.K. and U.S.A mode of judicial agency. On part of establishment, each country pays more attention to legal normalization, and some countries carry out administrative regulation. On basic procedure, there are differences between judicial process and administrative process. On legal reliefs, there are differences between administrative and judicial. Through comparison, we know that administrative coercion is limited by historical condition, but is to be kept openly and comprehensive and needed to seek objective integrity of advanced ideas, theories and own country’s characteristics. Legislation of administrative coercion must treat with balance between justice and efficiency, and take human rights’protection as ultimate aim unswervingly. Administrative coercion is neither“too soft”as to hinder accomplishment of Mankind well being, nor takes naked violence and suppress as aim. On border of effect of coercion, we must consider justice of administration self and the whole humanely social environment seriously.Chapter five is the construction of rule of law to administrative coercion.The chapter mainly has construction of rule of law to administrative coercion. Rational arrangement of administrative coercion is theoretical destination of the article. Hence, according to expounded ideas and absorbing many experiences from domestic and abroad, construction of rule of law pays more attention to establishment, measures, executive subject, process and relief. The article hopes that power of administrative coercion can be under control to protect and serve rights of administrative counterpart by normative request of rule of law, spiritual nature of rule of law, attitude of legal prohibition. Firstly, it is an introduction of China’s situation of administrative coercion from the inner ideology to actual system aiming to give panorama recognition to China’s administrative coercion at present. Secondly, it explains vitally basic principle of administration ruled by law and principle of proportionality abided by administrative coercion aiming to bring out limit and guidance to administrative coercion. Lastly, the power of establishment of administrative coercion should belong to law and regulation. The limitation of administrative coercion measures which are comparative important to rights gives priority to basic coercion law. Execution subjects are administrative agency and organization delegated of powers by law and regulations. Fulfillment subjects of arbitrary administrative execution act should be special administrative agencies. Administrative coercion insists on carry out in public and warns process. The relief of administrative coercion includes letters from and calls by the people, administrative review, administrative litigation, administrative recuperation, administrative compensation and so on.In summary, the article uncovers a deep contradiction hided back of administrative coercion through practical analysis. The article analyzes foreign countries’system of administrative coercion comparatively. The article explores theoretical foundation of administrative coercion ruled by law deeply and constructed rule of law to administrative coercion. All above efforts will play an active role to China’s legislation of administrative coercion, therefore, the article is of certain significance not only in theory but also in practice.

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