【作者】 侯晓蕾；

【导师】 崔卓兰；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 行政应急权是特殊的行政权力,由于行政应急权行使的对象是具有不确定性的突发事件,因此是否能将行政应急权纳入法治范畴之内一直是极富争议的问题,当国家与市民社会的二元对立结构被突破后,在公共服务行政理念的指导下,行政应急权的法律规范逐步清晰。行政应急权的权力配置与行使是否具有科学性、合理性直接决定着突发事件应急的结果,其过程价值与结果价值都极为重要。行政应急是审视我国现代化法制的一个独特视角,行政应急权的内容几乎涵盖了所有的行政行为,行政应急权的权力配置可突出显现常态下法律制度的不足和缺陷。同时行政应急权的特殊性还表现在,虽然其对公民的基本权利威胁性较大,行政应急自由裁量程度较大,但是不能简单地将其置于控权理论进行研究,社会力量在突发事件应急中的作用,使行政应急权力体制的构建更具多元化。本文将行政应急权置于平衡论、公共行政视角下予以研究,通过对行政应急权的内涵界定、特征分析,以及与相关概念的比较,界定本文研究行政应急权的侧重点是紧急状态之外的突发状态下的行政应急权。其次通过对行政应急权本体的认知,寻求行政应急权的法治正当性,即法律规范行政应急权的可能性与必要性;通过与国外先进经验的比较,找寻我国行政应急权力体制的不足,构建我国的行政应急权的法律体制。在行政权、行政自由裁量权的监督机制基础上,建立行政应急权力的监督机制。更多还原

【Abstract】 The administrative emergency power, is one of the special administrative powers.Because of the“undefinite”characteristic of emergencies ,it is always a discussing problem whether the law can rule administrative emergency power.When the construction of country(government) and society(citizen) is breaking, under the guide of theory of public service administration, how to rule administrative emergency power in legislations is probable.Whether it is socientific and reasonable of the power deployment of administrative emergency power is too important. It do determines the result of handing emergencies.So it has important values both of the process of handing emergencies and result. Administrative emergency power is a very special angle of view to modernization of law system. The content of administrative emergency power almost includes all administrative behaviours. The power deployment of administrative emergency power can make the defect of law system appearance in normal law condition.Also the particularity of administrative emergency power is although administrative emergency power threatens the basic rights of citizen strongly and administrative emergency discretionary power is powerful, we can’t simply research the administrative emergency power under controlling power theory. Because of the function of social power in handing emergencies, administrative emergency power system is more available. The article research the administrative emergency power under the balance theory and public administration. The author studies the connotation, the characteristic and the type, and the difference between the administrative emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power. Then, the author analyses the general theory of the administrative emergency power, namely, paying close attention to the negative effect of the administrative emergency power and pursing the double value of procedure and consequence of the administrative emergency power, proposes the new progress of the administrative emergency power under the controlling view, and structures the normal system of the administrative emergency power: legislative prevention, internal control, and judicial review afterward.Besides“introduction”and“conclusion”, there are four major parts (the first chapter to the forth 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 emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power. First, the author combs the connotation of the administrative emergency power, and analyses special characteristics of the“administrative”and“emergent”and defines its connotation; secondly, the author describes its type and characteristics; Finally, the author makes a distinction between the administrative emergency power and the relevant concept, distinguishes the basic problem of the administrative emergency power.The second chapter analyses with First, the author analyzes on the present legislative situation and power deployment and procedure of the administrative emergency power in foreign countries. And researching on the situation of our administrative emergency power legislation, comparing the characteristics of our country and foreign countries, we found the defects of our administrative emergency power system.The third chapter is to structure administrative emergency power system:Through discussing the condition of administrative emergency power legislation, pointing out the defect of administrative emergency power system in our country,and then we constructs the basic principle and the concrete system in the formulation of unified administrative emergency law. Second, the author is to structure the administrative emergency power system. It includes five problems:First, administrative emergency legislation includes emergency legislation and administrative emergency legislation;Next, the basic principles of administrative emergency power. The author thinks 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 emergency power which is extremely rich in discretion; Third, the author researches on the power deployment of administrative emergency main bodies. It has the characristics of the centralization and extension powers;Fourth, the author researches on the administrative emergency behaviours.The author compares the compulsory and uncompulsory administrative emergency behaviours, founding the good effects.At last, the author researches on the administrative emergency procedure, structuring many systems to look for the administrative emergency procedure values.The fourth chapter is about the way on the restraint and control of the administrative emergency 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 emergency 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 emergency 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.Another way on the restraint and control of the administrative emergency power is: Judicial review of the court, which includes the compulsory and administrative emergency measure power and the uncompulsory and administrative emergency power, realizes the final relief to the administrative emergency power. The author believes that although at present our country administrative emergency measure belongs to the document scope of the court, but the examining scope of the administrative emergency 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 emergency measure power in our country. Our present examination of the administrative emergency 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 emergency 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.And the author look for nother ways to protect the basic rights of citizens in judicial review.更多还原