行政紧急权行使之法制考量

发布时间：2018-08-24 20:25

【摘要】：紧急状态是针对正常状态而言的,是一种极具危害性和急需应对的非常状态。在此状态下,尽快平息紧急态势,维护公民权利,恢复正常社会秩序是政府不可推卸的责任,这其中行政紧急权的行使不可或缺。而具有公权性质的行政紧急权在行使中存在刚性有余、弹性不够、规制不足的问题。为了保护紧急状态下的公民权利,防止紧急状态下行政紧急权的滥用,必须对行政紧急权进行必要的法律规制。然而时值今日,我国尚无统一的紧急状态法,在应对日益多发的紧急情势上还只能依据单项救灾法律法规、突发事件应对法或相关行政法规,对紧急事件中行政紧急权的行使缺少相关的法律规制。因而在这种特殊危急情势之下容易遭受侵害的公民权利的保障和救济就成为隐忧,也是现代民主法治国家所要倾力解决的现实问题之一。因此,本文从行政紧急权的基本理论着手,以实现对我国行政紧急权行使的法律规制为目的。在分析国外行政紧急权法制以及我国紧急状态相关法律法规的基础上,着重探讨对行政紧急权的规制问题。探析了我国的紧急状态时行政紧急权行使过程中在权限范围、程序规范、权利保障与救济、监督和问责等方面存在的问题。针对这些问题尝试性地提出相应的可行性建议,即加强紧急状态立法的系统性、完善行政紧急权行使程序、确立行政紧急权行使的权限、完善权利救济渠道、建立行政紧急权的监督问责机制等,试图为我国紧急状态下行政紧急权行使的法制完善作出一些有益的探索。
[Abstract]:A state of emergency is a state of emergency which is extremely harmful and urgent to deal with. In this state, it is the responsibility that the government can't shirk to calm down the emergency situation as soon as possible, safeguard the civil rights and restore the normal social order, among which the executive emergency power is indispensable. However, there are some problems in the exercise of the administrative emergency power with public power, such as rigidity, lack of flexibility and insufficient regulation. In order to protect the civil rights under the state of emergency and prevent the abuse of the administrative emergency power under the state of emergency, it is necessary to regulate the administrative emergency power by law. However, today, there is no unified emergency law in our country. In response to increasingly frequent emergency situations, we can only rely on individual disaster relief laws and regulations, emergency response laws or related administrative regulations. Lack of relevant legal regulation on the exercise of administrative emergency power in emergency. Therefore, the protection and relief of civil rights, which are vulnerable to infringement under this special critical situation, has become a hidden concern, and it is also one of the practical problems to be solved in a modern democratic country under the rule of law. Therefore, this article starts from the basic theory of administrative emergency power, in order to realize the legal regulation of the exercise of administrative emergency power in our country. Based on the analysis of the foreign administrative emergency power legal system and the relevant laws and regulations of China's state of emergency, this paper focuses on the regulation of the administrative emergency power. This paper probes into the problems existing in the exercise of the administrative emergency power during the state of emergency in China in the aspects of the scope of authority, the standard of procedure, the protection and relief of rights, the supervision and accountability, and so on. In view of these problems, some feasible suggestions are put forward, that is, to strengthen the systematization of emergency legislation, to perfect the procedure of exercising administrative emergency power, to establish the authority to exercise administrative emergency power, and to perfect the channel of right relief. The establishment of the supervision and accountability mechanism of the administrative emergency power attempts to make some beneficial explorations for the perfection of the legal system for the exercise of the administrative emergency power under the state of emergency in our country.
【学位授予单位】：武汉科技大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.1

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