相对集中行政强制执行权研究
发布时间：2019-06-28 10:41
【摘要】：行政管理活动需要在行政法律制度的规范下有序进行。但是,如果制度滞后于现实需要,就会束缚甚至阻碍行政管理活动的顺利实施。我国正处于社会经济发展的转型期,行政管理事务呈现出多样化和复杂化的特点,既有不断扩张行政权的客观需求,也有改善行政执法体制的强烈呼唤。2011年《中华人民共和国行政强制法》(以下简称《行政强制法》)正是在这样一个历史背景下,承载者诸多美好的愿景面世,成为我国行政法律制度发展史上的大事件。然而,《行政强制法》并没有像人们所期待地那样,能够彻底解决行政强制执行权行使过程中存在的突出问题：各执行主体之间权力配置不合理,行政机关强制执行权不足、执行难,司法权、行政权错位、执行程序及法律救济制度存在漏洞等等。因而,还需要突破现有制度的束缚,大胆地进行改革。为此,笔者在深入研究现行制度的基础上,提出解决以上问题的可行性方案——相对集中行政强制执行权。本文对“相对集中行政强制执行权”的研究包括三个部分。第一部分是“相对集中行政强制执行权”的基本内涵及理论,在对其基本内涵进行介绍的基础上,从公共管理理论、行政效能理论以及“权力与权利”的平衡理论三个层面进行分析。第二个部分介绍了国内外“相对集中行政强制执行权”制度的基本状况。首先立足于介绍我国制度状况,指出其存在的问题,在此基础上,对其“相对集中”的情况进行评价。然后对美国、德国和日本等具有代表性的国外的行政强制执行制度作了介绍,指出其制度“相对集中”的基本情况和值得我国学习和借鉴的具体制度和做法。第三部分对如何构建相对集中行政强制执行权展开介绍。包括权力主体及其权力内容的确立、执行程序的构建以及法律救济制度的构建三方面。其中权力主体包括各专门行政机关、综合执法机关、行政执行机关、人民法院。对各专门行政机关依法享有的权力予以维持,并赋予其即时强制执行的权力。综合执法机关享有的权力与其日常行政执法活动有关,权力范围限定于与其行政执法权有关的行政强制执行权。行政执行机关享有的权力则主要是指行政机关无权行使、执行主体不明、职权交叉的行政强制执行权。人民法院对涉及相对人人身自由、重大财产性权利行政强制执行的司法审查权。执行程序包括行政机关适用的一般程序、特殊程序、即时强制程序和人民法院的司法审查程序四个部分。法律救济制度包括执行异议、行政复议、行政诉讼、司法复议以及国家赔偿等。
[Abstract]:Administrative activities need to be carried out in an orderly manner under the norms of the administrative legal system. However, if the system lags behind the actual needs, it will restrict or even hinder the smooth implementation of administrative activities. China is in the transition period of social and economic development, administrative affairs show the characteristics of diversification and complexity, not only the objective demand for expanding administrative power, but also the strong call to improve the administrative law enforcement system. 2011 "Administrative compulsory Law of the people's Republic of China" (hereinafter referred to as "Administrative compulsory Law") is under such a historical background, the carrier has a lot of beautiful vision. It has become a great event in the history of the development of administrative legal system in our country. However, the Administrative Enforcement Law has not completely solved the outstanding problems existing in the exercise of administrative enforcement power as expected: unreasonable allocation of power among executive subjects, insufficient enforcement power of administrative organs, difficulties in enforcement, judicial power, misplacement of administrative power, loopholes in enforcement procedures and legal relief systems, and so on. Therefore, it is also necessary to break through the shackles of the existing system and boldly carry out reforms. Therefore, on the basis of in-depth study of the current system, the author puts forward a feasible scheme to solve the above problems, that is, relatively centralized administrative enforcement power. The research on "relatively centralized administrative enforcement power" in this paper consists of three parts. The first part is the basic connotation and theory of "relatively centralized administrative enforcement power". On the basis of introducing its basic connotation, it is analyzed from three aspects: public management theory, administrative efficiency theory and the balance theory of "power and right". The second part introduces the basic situation of the system of relatively centralized administrative enforcement power at home and abroad. First of all, based on the introduction of the institutional situation of our country, this paper points out the existing problems, and on this basis, evaluates the situation of its "relative concentration". Then it introduces the representative foreign administrative enforcement system such as the United States, Germany and Japan, and points out the basic situation of its system "relatively concentrated" and the specific systems and practices worthy of our country's study and reference. The third part introduces how to construct the relatively centralized administrative enforcement power. Including the establishment of the subject of power and its power content, the construction of execution procedure and the construction of legal relief system. Among them, the main body of power includes various special administrative organs, comprehensive law enforcement agencies, administrative executive organs, and people's courts. Maintain the powers enjoyed by the special administrative organs in accordance with the law and give them the power to enforce them immediately. The power enjoyed by the comprehensive law enforcement organ is related to its daily administrative law enforcement activities, and the scope of power is limited to the administrative enforcement power related to its administrative law enforcement power. The power enjoyed by the administrative executive organ mainly refers to the administrative enforcement power which the administrative organ does not have the right to exercise, the subject of execution is unknown, and the functions and powers are intersected. The judicial examination power of the people's court concerning the administrative enforcement of the personal freedom and major property rights of the relative person. The execution procedure includes four parts: the general procedure applicable to the administrative organ, the special procedure, the immediate compulsory procedure and the judicial review procedure of the people's court. The legal relief system includes executive objection, administrative reconsideration, administrative litigation, judicial reconsideration and state compensation.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
本文编号：2507236
[Abstract]:Administrative activities need to be carried out in an orderly manner under the norms of the administrative legal system. However, if the system lags behind the actual needs, it will restrict or even hinder the smooth implementation of administrative activities. China is in the transition period of social and economic development, administrative affairs show the characteristics of diversification and complexity, not only the objective demand for expanding administrative power, but also the strong call to improve the administrative law enforcement system. 2011 "Administrative compulsory Law of the people's Republic of China" (hereinafter referred to as "Administrative compulsory Law") is under such a historical background, the carrier has a lot of beautiful vision. It has become a great event in the history of the development of administrative legal system in our country. However, the Administrative Enforcement Law has not completely solved the outstanding problems existing in the exercise of administrative enforcement power as expected: unreasonable allocation of power among executive subjects, insufficient enforcement power of administrative organs, difficulties in enforcement, judicial power, misplacement of administrative power, loopholes in enforcement procedures and legal relief systems, and so on. Therefore, it is also necessary to break through the shackles of the existing system and boldly carry out reforms. Therefore, on the basis of in-depth study of the current system, the author puts forward a feasible scheme to solve the above problems, that is, relatively centralized administrative enforcement power. The research on "relatively centralized administrative enforcement power" in this paper consists of three parts. The first part is the basic connotation and theory of "relatively centralized administrative enforcement power". On the basis of introducing its basic connotation, it is analyzed from three aspects: public management theory, administrative efficiency theory and the balance theory of "power and right". The second part introduces the basic situation of the system of relatively centralized administrative enforcement power at home and abroad. First of all, based on the introduction of the institutional situation of our country, this paper points out the existing problems, and on this basis, evaluates the situation of its "relative concentration". Then it introduces the representative foreign administrative enforcement system such as the United States, Germany and Japan, and points out the basic situation of its system "relatively concentrated" and the specific systems and practices worthy of our country's study and reference. The third part introduces how to construct the relatively centralized administrative enforcement power. Including the establishment of the subject of power and its power content, the construction of execution procedure and the construction of legal relief system. Among them, the main body of power includes various special administrative organs, comprehensive law enforcement agencies, administrative executive organs, and people's courts. Maintain the powers enjoyed by the special administrative organs in accordance with the law and give them the power to enforce them immediately. The power enjoyed by the comprehensive law enforcement organ is related to its daily administrative law enforcement activities, and the scope of power is limited to the administrative enforcement power related to its administrative law enforcement power. The power enjoyed by the administrative executive organ mainly refers to the administrative enforcement power which the administrative organ does not have the right to exercise, the subject of execution is unknown, and the functions and powers are intersected. The judicial examination power of the people's court concerning the administrative enforcement of the personal freedom and major property rights of the relative person. The execution procedure includes four parts: the general procedure applicable to the administrative organ, the special procedure, the immediate compulsory procedure and the judicial review procedure of the people's court. The legal relief system includes executive objection, administrative reconsideration, administrative litigation, judicial reconsideration and state compensation.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
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相关期刊论文 前2条
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