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Research on Procedure of Arbitrary Administrative Execution

Author: ZhangSuXia
Tutor: PengGuiCai
School: Jilin University
Course: Legal
Keywords: Warn Administrative Enforcement The implementation of relief Administrative enforcement procedures Administrative self - enforce program Apply for court enforcement procedures
CLC: D912.1
Type: Master's thesis
Year: 2005
Downloads: 295
Quote: 4
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Abstract


The modernization of economy requires the modernization of government by law. With the development of economy in our country,the construction of legal system in our country makes a great progress, but still have great disparity with the development speed and statue of economic. For adapting the requirement of the construction of legal system in our country, the author starts with the necessary of the procedure of arbitrary administrative execution and conceives the procedure of arbitrary administrative execution mode in our country, using for reference the successful experience of foreign countries and regions and combining with the principle of arbitrary administrative execution. This essay is divided into three chapters and some sections. In chapter one the author dissertates the theoretical base of procedure of arbitrary administrative execution from the point of nomology, economics, sociology and humanness. From the point of nomology , the procedure of arbitrary administrative execution makes administrative counterpart enjoy a coordinate procedure position with administrative organization , be entitled to the procedure right and assume the procedure obligation for realizing procedural justice.; From the point of economics, the procedure of arbitrary administrative execution improves the efficiency of administration through distributing law resource rationally ; From the point of sociology, the procedure of arbitrary administrative execution can prevent administrative organization from abusing of authority and alleciate the contradiction between the administrative organization and the administrative counterpart so as to realize social tranquilization; From the point of humanness, the procedure of arbitrary administrative execution affirms the position and the value of the administrative counterpart . In chapter two the author introduces and analyses the successful experience of foreign countries and regions of the procedure of arbitrary administrative execution. It can be seen that every country takes in hand the assignments to realize the administrative function, improve the efficiency of administration and so on. But because of the different of tradition, custom and cognition, the ways and means they settle these questions are different. German and Austria attach importance to the efficiency of administration as the type of continental law system. So they award the power of arbitrary administrative execution to administrative organization mainly. And they have a series of perfect procedure of arbitrary administrative execution including of caution, arbitrary administrative execution and administrative remedy. Great Britain and United States consider that judicature is superior in comparison with administrative authority as the type of common law system. So they award the power of arbitrary administrative execution to judicial apparatus. Arbitrary administrative execution often depends on judicial practice directly or finally. Japan inherits the mode of the procedure of arbitrary administrative execution of German and Austria and attaches importance to the efficiency of administration. After the Second World War it assimilated some principles of rule of law, so its procedure of arbitrary administrative execution is different with other countries, including of caution, decision of substitution performance and substitution performance. HongKong belongs to common law system. Its procedure of arbitrary administrative execution is similar withGreat Britain and United States. And it emphasizes on democracy and fair. Administrative organization can not coercive directly. It must bring on civil action and ask for court to coercive. Macao and Taiwan belong to continental law system totally and their procedures of arbitrary administrative execution are similar with German and Austria. When we constitute law for procedure of arbitrary administrative execution, some successful experience of those countries and regions can offer helpful reference and give us a new clue from puzzle. In chapter three the author resolves the main body to execute and discusses the design of procedure of arbitrary administrative execution. From the legal regulation of the procedure of arbitrary administrative execution in our country, arbitrary administrative execution of court is primary, arbitrary administrative execution of administrative organization is accessorial. Different subject of execution decides that there are two serials of procedure of arbitrary administrative execution in our country. The author considers that we should enact the procedure of arbitrary administrative execution in our country, including of caution, decision of arbitrary administrative execution, implement of arbitrary administrative execution and administrative remedy. Namely after specific administrative act have been made, administrative counterpart do not exercise burden before the deadline for performance. Administrative organization should firstly give the caution to the administrative counterpart for expecting him exercising self–consciously and tell him the disadvantageously result if he do not exercise. After the caution administrative counterpart do not exercise the burden, administrative organization should make the decision of arbitrary administrative execution. Administrative

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CLC: > Political, legal > Legal > UNIVERSITY > Administrative law
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