应急法制建设中的行政应急性原则研究
发布时间：2018-08-23 20:28
【摘要】：行政应急性原则的研究在我国经历了跌宕起伏的过程。自上世纪80年代末期提出至今，除了在需要的时候拿出来“应景”之外，一直处于被遗忘的角落。与其他行政法原则的研究成果相比，当前学界对行政应急性原则的研究尚少，，迄今为止国内尚缺乏一部专门研究行政应急性原则方面的专著，法律实务界也对行政应急性原则的关注甚少。研究的不足导致应急性原则存在边界不清、定性不明、可能被滥用等问题。但事实上，作为应急法制的基础性原则，应急法制建设的客观需要要求我们加大对行政应急性原则的深入研究。 正是理论和实践的双重期待，加上笔者的兴趣使然，成就了本文的出现。鉴于目前行政应急性原则存在着理论基础研究不足、边界不清、自身价值不够独立等问题，本文将采取历史梳理、价值分析等方法，对这些问题作出不同程度的解答。 本文正文一共分为五个部分。第一部分是行政应急性原则的本体论，即对行政应急性原则概念、性质、适用条件的研究。通过对行政应急性原则历史沿革的梳理，介绍了不同学者对应急性原则的不同理解，完成应急性原则的性质和适用条件的界定。 第二部分是行政应急性原则的本源论，即对行政应急性原则的理论渊源和现实基础进行梳理。该部分回溯了中世纪以来和应急性原则相关的思想理论，明确了应急性原则的提出具有切实、源远的理论基石和现实基础。 第三部分是行政应急性原则的价值论，即对行政应急性原则所蕴含的价值进行分析。作为一项法律原则，其蕴含价值成为其能否确立的关键。本文在价值分析中，将应急性原则价值的落脚点放在了合理配置行政权和保护相对人正当权利的经典问题上。当然，价值有正面价值和负面价值之分，故在本部分还分析了行政应急性原则存在的缺陷，并对存在的问题作了简要的回应和解答。 第四部分是行政应急性原则的运用影响论，即行政应急性原则运用中对传统“三权分立”结构的影响。分析了应急性原则的应用会导致立法机关权限的谦抑、司法机关权限的克制和行政机关权限的集中与扩张。 第五部分是行政应急性原则在我国的法律实践论，即行政应急性原则对我国应急法律体系建设的指导意义。指出我国现今应急法制体系存在的问题，通过分析问题，指出通过加强对行政应急性原则的研究，最终制定《紧急状态法》才是解决上述问题的良方。
[Abstract]:The study of the principle of administrative emergency has experienced a process of ups and downs in our country. Since it was proposed in the late 1980s, it has been in a forgotten corner except when needed. Compared with the research results of other principles of administrative law, the current academic research on the principle of administrative emergency is still few, so far there is a lack of a monograph devoted to the principle of administrative emergency in China. The legal practice also pays little attention to the principle of administrative emergency. The lack of research leads to the problems of unclear boundary, unclear characterization and possible abuse of the principle of emergency. But in fact, as the basic principle of emergency legal system, the objective need of emergency legal system construction requires us to increase the in-depth study on the principle of administrative emergency. It is the double expectation of theory and practice and the interest of the author that make this article appear. In view of the problems existing in the present administrative emergency principle, such as insufficient theoretical basic research, unclear boundary and insufficient independence of its own value, this paper will take the methods of historical combing and value analysis to solve these problems to varying degrees. This text is divided into five parts altogether. The first part is the ontology of the principle of administrative emergency, that is, the study of the concept, nature and applicable conditions of the principle of administrative emergency. By combing the historical evolution of the principle of administrative emergency, this paper introduces different scholars' different understandings of the principle of emergency, and completes the definition of the nature and applicable conditions of the principle of emergency. The second part is the origin of the principle of administrative emergency, that is, the theoretical origin and practical basis of the principle of administrative emergency. This part goes back to the theory related to the principle of emergency since the Middle Ages, and clarifies that the principle of emergency has practical foundation and practical foundation. The third part is the theory of value of the principle of administrative emergency, that is, the value of the principle of administrative emergency. As a legal principle, its implied value is the key to its establishment. In the value analysis, this paper puts the foothold of the emergent principle value on the classical problem of the rational allocation of administrative power and the protection of the legitimate rights of the counterpart. Of course, the value has positive value and negative value, so this part also analyzes the defects of the principle of administrative emergency, and makes a brief response and answers to the existing problems. The fourth part is the influence theory of the principle of administrative emergency, that is, the influence of the application of the principle of administrative emergency on the traditional structure of "separation of powers". The application of the principle of emergency will lead to the restraint of the authority of the legislature, the restraint of the authority of the judiciary and the centralization and expansion of the authority of the administrative organ. The fifth part is the legal practice of the principle of administrative emergency in our country, that is, the guiding significance of the principle of administrative emergency to the construction of our country's emergency legal system. This paper points out the problems existing in the current emergency legal system of our country, through analyzing the problems, points out that through strengthening the research on the principle of administrative emergency, the final formulation of the Emergency Law is the best way to solve the above problems.
【学位授予单位】：中共中央党校
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
本文编号：2199832
[Abstract]:The study of the principle of administrative emergency has experienced a process of ups and downs in our country. Since it was proposed in the late 1980s, it has been in a forgotten corner except when needed. Compared with the research results of other principles of administrative law, the current academic research on the principle of administrative emergency is still few, so far there is a lack of a monograph devoted to the principle of administrative emergency in China. The legal practice also pays little attention to the principle of administrative emergency. The lack of research leads to the problems of unclear boundary, unclear characterization and possible abuse of the principle of emergency. But in fact, as the basic principle of emergency legal system, the objective need of emergency legal system construction requires us to increase the in-depth study on the principle of administrative emergency. It is the double expectation of theory and practice and the interest of the author that make this article appear. In view of the problems existing in the present administrative emergency principle, such as insufficient theoretical basic research, unclear boundary and insufficient independence of its own value, this paper will take the methods of historical combing and value analysis to solve these problems to varying degrees. This text is divided into five parts altogether. The first part is the ontology of the principle of administrative emergency, that is, the study of the concept, nature and applicable conditions of the principle of administrative emergency. By combing the historical evolution of the principle of administrative emergency, this paper introduces different scholars' different understandings of the principle of emergency, and completes the definition of the nature and applicable conditions of the principle of emergency. The second part is the origin of the principle of administrative emergency, that is, the theoretical origin and practical basis of the principle of administrative emergency. This part goes back to the theory related to the principle of emergency since the Middle Ages, and clarifies that the principle of emergency has practical foundation and practical foundation. The third part is the theory of value of the principle of administrative emergency, that is, the value of the principle of administrative emergency. As a legal principle, its implied value is the key to its establishment. In the value analysis, this paper puts the foothold of the emergent principle value on the classical problem of the rational allocation of administrative power and the protection of the legitimate rights of the counterpart. Of course, the value has positive value and negative value, so this part also analyzes the defects of the principle of administrative emergency, and makes a brief response and answers to the existing problems. The fourth part is the influence theory of the principle of administrative emergency, that is, the influence of the application of the principle of administrative emergency on the traditional structure of "separation of powers". The application of the principle of emergency will lead to the restraint of the authority of the legislature, the restraint of the authority of the judiciary and the centralization and expansion of the authority of the administrative organ. The fifth part is the legal practice of the principle of administrative emergency in our country, that is, the guiding significance of the principle of administrative emergency to the construction of our country's emergency legal system. This paper points out the problems existing in the current emergency legal system of our country, through analyzing the problems, points out that through strengthening the research on the principle of administrative emergency, the final formulation of the Emergency Law is the best way to solve the above problems.
【学位授予单位】：中共中央党校
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
本文编号：2199832
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