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The Study on Emergency Powers in the Emergencies

Author: ChenZuo
Tutor: ChenFengChao
School: Changchun University of Science and Technology
Course: Constitutional and Administrative Law
Keywords: Emergencies Emergency powers Administrative law
CLC: D912.1
Type: Master's thesis
Year: 2010
Downloads: 104
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Abstract

Emergencies emergency powers to run a relatively unique structure,we usually are familiar with the general executive powers large compared to the nature of differences.Taking into account unexpected events may be in various areas of social life are caused by this or that conflict of interest,resulting in a very state of society to run,or will soon face a greater cause harm,we need to use various means to regulate the abuse or notfair possible risks.Although China’s current laws on emergency state of emergency,how to carry out emergency executive powers to be exercised,but overall,there are still some problems.For example,in systematic legal system,with regard to emergency use of emergency powers in the legislative policy to run the clarity and detail is not enough.Involved are far too many of the relevant provisions of the rough and simple.Overall,the lack of a more unified multi-level framework. Systematic normative system obviously thin,there are certain defects such as systemic risk.We draw on the emergency powers United States and other relatively developed countries,the theory and practice experience,unexpected events in the overall grasp the urgency of the right to conduct research and analysis may be considered conflicts of interest strictly prohibited legislative policy.And from a practical reality,and reasonable definition of the conflict of interest,the main body of the unexpected events of all kinds of multi-party constitutional basic rights under the law are fully protected.Conflict of interest and to strengthen the supervision of the implementation of the classification of the existing system. Will improve the internal restraint mechanism and information disclosure system to fully spread to the grassroots level executive. And at the same time giving people the right of appeal and so the relative power and improve our current system of legal norms.For the public and private law at the boundary of the fuzzy zone,as far as possible to express the specific norms.Through the unexpected events in the implementation of the emergency powers of the government’s administrative reform of the power changes,mutatis mutandis,the relevant laws and regulations,China’s current system of years of practice,can and can find out the appropriate on the characteristics of modern socialism,on the unexpected eventsemergency powers some of the improvement of policy reforms in a realistic path.A state of emergency under the emergency powers the Government is not unique or exclusive of a branch of power but the power of the government as a whole, the constitutional principle of separation of powers must be emphasized that the executive emergency powers must be subject to constraints from other government departments.The principle of executive emergency powers, sources, the use of the premise, conditions, rules of procedure, exercise restrictions and compensation for damage to a number of specific issues such as detailed specifications.In the state of emergency, especially the executive emergency powers, the legislative branch should not be a single form of law, but should be carried out successively one by one, effectively controlled. Thus, in addition to the general provisions of a state of emergency law, should also develop special rules that governments need to adopt a state of emergency and the exercise of personal freedom and property rights of citizens involved in emergency power, the NPC Standing Committee should report and get the resolution licensed.Strengthening the judiciary’s position and ability to establish and improve the administrative system of judicial review of emergency powers.This need to establish a sound mechanism of constitutional litigation, namely the legal circles in recent years, concern about the judicial supervision of the Constitution.If the executive branch in the exercise of emergency powers and the whole state of emergency order is a violation of the Constitution or a state of emergency law, undermines the state, society’s public interests or the interests of citizens, they should bring the relevant departments or civil proceedings by the court of administrativeunconstitutional conduct of departmental review to correct errors and make up for losses, and safeguard the constitutional dignity and social justice.To establish the settlement of public emergencies basic principles to be followed, such as the balance between freedom and order, public interest and the principle of personal interests and must not illegally violate the principle of legitimate rights and interests of citizens, as well as the aforementioned basic principles of administrative law. Clearly defined public emergencies definition of this concept, and as much detail as some of the common list, the more serious types of public emergencies.Provides confirmation of the main public emergencies, confirm competence, recognition criteria and confirmation process.From the physical aspects of specific provisions and procedures of two governments (and other relevant organizations) in response to public emergencies, or to solve a variety of emergency measures can be taken, in particular, the Government should be clearly defined powers and responsibilities of emergency treatment, as well as individual and organizationa lparticipation, co-ordination to assist emergency the rights and obligations.How does the emergency executive powers to effectively supervise and constraints defined in the emergency treatment process administrative omission,,as well as administrative organs and their staff misuse, abuse emergency measures should bear the legal consequences.Provides individuals and organizations to be impeding emergency bear legal responsibility. Clear that the right to relief mechanism, as well as with relevant national compensation and the national question of compensation.The rule of law under the emergency powers of the state power should be placed in the constitutional right of national emergency within the orbit in order to regulate the exercise of constitutional and legal limits, which is building an important part of the country the rule of law.A complete legal system for the emergency powers would not conflict with the rule of law, but to strengthen and promote the rule of law in the process of the country, making a critical moment in the country can still be run in line with the rule of law to ensure that power the track.Therefore, the legal system evaluation criteria for the emergency powers must be a standard to test the rule by law rather than focus on the effectiveness of response.Since it is the right of national emergency in response to a crisis state, beyond the usual framework of the constitutional system,in order to play the function of concentration of power, then the exercise of emergency powers necessary to make the constitutional system of the central people’s representative body, the loss of its general administration of the suppression e.The structure of society and the rule of metamorphism.The right of national emergency has a distinct dual character, if careful operation,then this can be to safeguard national order and ensuring the effectiveness of constitutional politics; if it is used improperly,could easily mutate into trampled constitutional government, and violations of human rights instruments.Therefore, the Government has the right to wield double-edged sword when an emergency must be careful to avoid undermining the constitutional system, resulting in the rule of law destitution.If the social crisis the country faced a constitutional crisis when the recurrence is tantamount to worse.

The Study on Emergency Powers in the Emergencies

Abstract

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