当代中国行政取缔的法律治理
发布时间：2019-05-23 18:42
【摘要】：强制执行力是行政取缔在实证中呈现的最重要显性特征之一,对其正当性的解读有助于从法理上厘清取缔的内部权力构造,即存在对行政机关的实质性"包裹授权",包括授权做出行政禁令及禁令之即时强制执行,二者共同诠释了取缔非制裁性、终局性和实效性等权力特性,非仅为执法目的的宣示。此为我国取缔的法律治理指明了路向。基于新时期"管理与预防、控制"等"管控"价值的需求,取缔作为聚合了意思行为和实力行为而"处执合一"的综合执法行为仍然有其生命力和存在正当性,应该在法治引领和规范作用下对取缔的规范设定、规范清理与适用,以及其与《行政强制法》程序冲突的解决等问题做出清晰的处理和释解。通过法律治理有效回应取缔执法中的诸多困局和废除取缔的论说,并建议把取缔作为一个严格的法律概念使用,避免生活中的滥用和法律意义虚化。
[Abstract]:Enforcement power is one of the most important explicit characteristics of administrative ban in empirical evidence. The interpretation of its legitimacy is helpful to clarify the internal power structure of prohibition from a legal point of view, that is, the existence of substantive "package authorization" to administrative organs. Including authorizing the administrative ban and the immediate enforcement of the injunction, both of which interpret the power characteristics such as the prohibition of non-prescriptive, final and effective, and not only for the purpose of law enforcement. This points out the way for the legal governance banned in our country. Based on the demand of "management and prevention, control" and other "control" values in the new period, banning the comprehensive law enforcement behavior, which aggregates the behavior of meaning and strength, still has its vitality and legitimacy. Under the guidance and standardization of the rule of law, we should make a clear treatment and interpretation of the establishment of the ban norms, the cleaning and application of the norms, and the solution of the procedural conflict between the administrative jus cogens and the administrative jus cogens. Through legal governance, we should effectively respond to many difficulties in banning law enforcement and abolish the theory of abolishing ban, and suggest that ban should be used as a strict legal concept to avoid abuse and falsification of legal significance in life.
【作者单位】： 天津师范大学法学院;
【分类号】：D922.1
，
本文编号：2484132
[Abstract]:Enforcement power is one of the most important explicit characteristics of administrative ban in empirical evidence. The interpretation of its legitimacy is helpful to clarify the internal power structure of prohibition from a legal point of view, that is, the existence of substantive "package authorization" to administrative organs. Including authorizing the administrative ban and the immediate enforcement of the injunction, both of which interpret the power characteristics such as the prohibition of non-prescriptive, final and effective, and not only for the purpose of law enforcement. This points out the way for the legal governance banned in our country. Based on the demand of "management and prevention, control" and other "control" values in the new period, banning the comprehensive law enforcement behavior, which aggregates the behavior of meaning and strength, still has its vitality and legitimacy. Under the guidance and standardization of the rule of law, we should make a clear treatment and interpretation of the establishment of the ban norms, the cleaning and application of the norms, and the solution of the procedural conflict between the administrative jus cogens and the administrative jus cogens. Through legal governance, we should effectively respond to many difficulties in banning law enforcement and abolish the theory of abolishing ban, and suggest that ban should be used as a strict legal concept to avoid abuse and falsification of legal significance in life.
【作者单位】： 天津师范大学法学院;
【分类号】：D922.1
，
本文编号：2484132
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