【作者】 张婧飞；

【导师】 崔卓兰；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【摘要】 行政强制权是行政权力中最直接和最有效的权能,其涉及到对公民的人身自由和财产权利的限制,因而也是威胁、打击力度最强烈的权力。然而,传统视角下,我国学术界过于关注其正效应,而忽视其负效应,过度追求其结果价值,而忽略其过程价值,对行政强制权缺乏必要的约束与控制,导致行政强制权的滥用,侵犯相对方合法权益。因此,我们应将行政强制权置于控权视角下研究,关注行政强制权运行的负效应,追求行政强制权运行的过程与结果的双重价值,注重对行政强制权的约束与控制。本文通过对行政强制权内涵的界定、特征的分析以及与相关概念的比较,梳理清楚行政强制权的基本内容。通过对行政强制权控制的一般理论分析,指出行政强制权的发展趋势,即控权视角下的新进展。并就构建对行政强制权控制的规范体系进行了制度设计,即为规范行政强制权的行使,控制行政强制权的滥用,应在立法、执法与司法三个环节约束和控制行政强制权。其中,对行政强制权进行立法控制,是对行政强制权运行的事前预防。对行政强制权的执行机关的内部控制,是对行政强制权运行的事中规范。对行政强制权进行司法审查,虽然不是行政强制权运行的必经环节,但却是纠正行政强制权违法行使的最后环节,亦即对行政强制权运行的事后纠正。正是通过事前、事中和事后的控制体系的有机结合,从而建立起在控权视角之下的关于行政强制权的相对完善的约束和控制体系。更多还原

【Abstract】 The administrative compulsory power, as the most direct and the most effective power of the administrative power, involves the limits of citizen’s personal freedom and the property right, and thus is also most intense power with threat and attack. In order to achieve certain administrative goal, the administrative compulsory power will violate the rights of citizens inevitably. However, our country academic study places the main energy in the research of its positive effect all along, and regards the administrative compulsory power as the important means to achieve the social order and pursue the administrative efficiency, but seldom elaborates to its negative effect. In fact, since it was produced, because of its potential to be abused and its substandard exercises, it always influences exertion of the rights of citizens and is easy to cause conflicts. In practice the case of the conflict between the administrative compulsory power and the rights of citizens is often published in newspapers and causes the widespread dispute, especially in the house relocation. Such fact needs us to transform the original view, emphasizing the restraint and control on the administrative compulsory power, and puts the study on controlling the administrative power. The author studies the connotation, the characteristic and the type, and the difference between the administrative compulsory power and the relevant concept, distinguishes the basic problem of the administrative compulsory power. Then, the author analyses the general theory of controlling of the administrative compulsory power, namely, paying close attention to the negative effect of the administrative compulsory power and pursing the double value of procedure and consequence of the administrative compulsory power, proposes the new progress of the administrative compulsory power under the controlling view, and structures the normal system of the administrative compulsory power: legislative prevention, internal control, and judicial review afterward. They together complete the restraint and control of the administrative compulsory power. And then the author makes the corresponding system construction to consummate each way.Besides“introduction”and“conclusion”, there are five major parts (the first chapter to the fifth chapter) of the main body in this paper.The first chapter summaries the connotation, the characteristic and the type, and the difference between the administrative compulsory power and the relevant concept, distinguishes the basic problem of the administrative compulsory power. First, the author combs the connotation of the administrative compulsory power, and analyses special characteristics of the“administrative”and“compulsory”and defines its connotation; secondly, the author describes its type and characteristics; Finally, the author makes a distinction between the administrative compulsory power and the relevant concept, distinguishes the basic problem of the administrative compulsory power.The second chapter analyses the general theory of controlling the administrative compulsory power, proposes the new progress of the administrative compulsory power under the controlling view, and structures the normal system of the administrative compulsory power under the controlling view. The author first analyses the general theory of the administrative compulsory power, namely, paying close attention to the negative effect of the administrative compulsory power and pursing the double value of procedure and consequence of the administrative compulsory power, and carrying on the empirical analysis on its negative effect taking house relocation as the example, and proposes the new progress of the administrative compulsory power under the controlling view, attached in form, legal in origin, progressive in the compulsory way, democratic in way of exercising; Next, the author structures the normal controlling system of the administrative compulsory power, namely, legislative prevention, internal control, and judicial review afterward. They together complete the restraint and control of the administrative compulsory power.The third chapter is about one of the ways on restraint and control the administrative compulsory power: The Legislature controlled in anticipation. By analyzing the present situation, the author points out the difficult position in formulating the unification administrative compulsory law. And then she constructs the basic principle and the concrete system in the formulation of unified administrative compulsory law. First, the author analyzes on the present legislative situation of the administrative compulsory power. At present, the main mode of the legislation is dispersal. Because lacking of the unified guide thought, legislative principle and the procedural norm, leads to the insufficient procedural norm and substantive restraint, and causes the randomly supposing of the administrative subject and abusing of the administrative compulsory power in practice which carries on great threat and the influence on the private party. Next, the author analyses the difficult position of the establishment, the implementation and the procedure. Finally, the author formulates the unified administrative compulsory law. It mainly includes two aspects: First, the basic principle of administrative compulsory legislation. The author believes that the valid principle and the proportional principle are the basic principles which the administrative compulsory legislation should follow. The valid principle contains the legal first principle and the legal retentive principle which exercises the significance regarding the establishment and practice. The proportional principle may active constrain the power such as the administrative compulsory power which is extremely rich in discretion; secondly, design the concrete system in view of the legislative difficult position. In view of the difficult position in establishment, the author designs the system from four aspects: the subject, the form, the jurisdiction, and the way. In view of the difficulty on the subject, the author believes that our country should maintain the present situation by analyzing the situation of awarding the administrative compulsory power in the major country of the world and the actual foundation in our country, and simultaneously we should divide the court and the administrative organ explicitly of the administrative compulsory enforcement power on the scope of jurisdiction ; To design the procedure system, the author mainly enforces two aspects: The administrative compulsory measure power and the administrative compulsory enforcement power. Give the essential restraint and the control to the administrative subject by stipulating the procedure explicitly.The fourth chapter is about the second way on the restraint and control of the administrative compulsory power: internal control of the administrative organ. The author points out the construction of the administrative organ internal control system by analyzing its necessity, and analyses on the domain of its function. First, the author believes that the administrative organ internal control may avoid the abuse of the administrative compulsory power and make up the insufficiency of the external control. The internal control theory originates in transforming from the traditional normative controls the power pattern to the functional construction pattern. Next, the author researches the practical significance of the internal control. The internal control is the need to administrative compulsory system reform, and has own superiority to the external control. Thirdly, the author analyses the way on internal control. The system of the administrative organ internal control consists of the level control system, specially the control system,“the decentralization”system as well as the administrative judicial system. Finally, the functional domain of the administrative organ internal control is the domain to establishing and domain to carrying out.The fifth chapter is about the third way on the restraint and control of the administrative compulsory power: Judicial review of the court, which includes the administrative compulsory measure power and the administrative compulsory enforcement power, realizes the final relief to the administrative compulsory power. The author believes that although at present our country administrative compulsory measure belongs to the document scope of the court, but the examining scope of the administrative compulsory measure power is too narrow. It is necessary to absorb Germany examination standard for discretion power to strengthen the breadth and the depth of the examination to the administrative compulsory measure power in our country. Our present examination of the administrative compulsory measure power in the administrative procedural law is the review mechanism in anticipation of the court about the enforce case applied by the administrative organ. Although many scholars raise the objection upon this, the author believes that the review mechanism might carry on the effective control in preventing the illegal administrative compulsory power to violate the rights and interests of the private party. As for the pattern of voluntary control of the administrative organ, the author believes that we should integrate it to the administrative proceedings scope. If the administrative private party refuses to accept, he is authorized to file the administrative proceedings, and the deadline of filing the administrative proceedings is just after the warning decision was made. It does not need finishing the enforcing execution of the administrative organ in case to prevent to create the nonessential violation to the administrative private party.更多还原