Research On Regulation Of Discretionary Of Administrative Compulsory Measures

The administrative purpose of administrative compulsory measures is to stop illegal acts,prevent evidence damage,avoid harm and control the expansion of danger.What it needs to deal with and solve is all kinds of emergencies in social life.Due to the limitations of legislation itself and the characteristics of emergencies such as suddenness,complexity and unpredictability,the legislature needs to reserve part of the administrative discretion space,so that the administrative organs can have the discretion space of whether and how to deal with administrative coercive measures when dealing with emergencies.As an administrative act that has a great impact on the rights and obligations of the administrative counterpart,the reasonable or unreasonable operation of administrative compulsory measures within the scope of discretion will also affect the rights and obligations of the administrative counterpart.In order to make the discretion of administrative compulsory measures operate within a reasonable range and prevent the abuse,neglect and overstepping of the discretion of administrative compulsory measures from infringing on the legitimate rights and interests of the administrative counterpart,this paper attempts to put forward suggestions on different ways to regulate the discretion of administrative compulsory measures according to the characteristics of the discretion of administrative compulsory measures and the focus and limitations of legislative regulation,administrative regulation and judicial regulation.This paper uses the methodology of administrative process theory,unified discretion theory,administrative discretion contraction theory,administrative act effectiveness theory and balance theory to demonstrate and analyze.The first thing to be solved is the difference in the concept of administrative compulsory measures.On the one hand,by analyzing the adjustment scope of administrative compulsory measures and the different positioning in the administrative process,comparing the differences between immediate enforcement and administrative compulsory measures,and comparing the system positioning and concept connotation of "administrative compulsory measures" in countries of different jurisdictions,we can summarize the adjustment scope and positioning of China’s administrative compulsory measures system;On the other hand,it combs the concept of administrative discretion,compares the positioning differences of administrative discretion in different jurisdictions,and analyzes the connotation of administrative enforcement discretion in China.Then it analyzes the relationship between the administrative compulsory power and the discretion of administrative compulsory measures,and analyzes the differences and emphasis between the discretion of administrative compulsory measures and the discretion of administrative punishment and administrative permission;Finally,on the basis of clarifying the connotation of the discretion of administrative compulsory measures,this paper deconstructs the internal structure of the discretion of administrative compulsory measures,analyzes the internal structure of the discretion of administrative compulsory measures,and analyzes the characteristics of the discretion of administrative compulsory measures,such as the legal nature of the discretion effect,the uncertainty of the discretion effect,the subordination of the discretion effect,and the concealment of the discretion effect.Secondly,on the basis of combing and analyzing the theory of administrative compulsory measures discretion,this paper examines the characteristics,application process and effectiveness of administrative compulsory measures discretion from a variety of different perspectives.On the one hand,it puts the discretion of administrative enforcement measures under the perspective of different administrative discretion views,and analyzes the differences in the discretion space of administrative enforcement measures under different discretion views;On the other hand,from the perspective of administrative behavior process,the application process of administrative compulsory measures is observed,and the application process of administrative compulsory measures is deconstructed from the investigation of case facts,to the determination of legal facts,to the fact to the legal implication,and finally to the determination of the effect of administrative compulsory measures;On the last hand,from the perspective of the effectiveness of administrative acts,the effectiveness changes of different types of administrative compulsory measures,such as independent administrative procedures,daily means and intermediate acts,in the process of law application,and the effectiveness changes of immediate coercion,administrative compulsory measures in emergency management and administrative compulsory measures without specific counterparts in the process of law application are observed.Thirdly,it observes the practical problems existing in the discretion of administrative compulsory measures in the legislative stage,the administrative application stage and the judicial trial stage with the awareness of problems,and analyzes the anomie and conflict of application of administrative compulsory measures in the process of law application: on the one hand,it analyzes the abuse of administrative compulsory measures in the discretion of administrative compulsory measures,such as violating the administrative purpose,not considering the relevant factors or considering the unrelated factors,violating the principle of administrative coercion,and analyzes the situation of administrative compulsory measures’ discretion neglect and discretion overstepping;On the other hand,it analyzes the specific situation of the application conflict of administrative compulsory measures,and analyzes the application conflict between the administrative compulsory measures of personal freedom and the implementation of administrative(judicial)detention.Then,according to the focus of regulating the discretion of administrative compulsory measures in the legislative,administrative and judicial links,the dilemma of the discretion of administrative compulsory measures in the legislative regulation,administrative regulation and judicial regulation is analyzed: the limitations of legislative regulation are legislative rigor and factual complexity,the effect of administrative compulsory measures is unclear,and the administrative purpose is not clear;This paper analyzes the limitations of administrative regulation in terms of decentralization regulation,supervision regulation,Procedural Regulation and discretion benchmark in regulating the discretion of administrative compulsory measures;This paper analyzes the limitations of judicial regulation,such as the limited scope and effect of judicial regulation,and the difficulty in defining the subjective judgment standard.From the perspective of "right restricting power",this paper analyzes the dilemma of discretionary regulation of administrative compulsory measures caused by the unclear legal rights and obligations of the administrative counterpart.Finally,from the perspective of legislative regulation,administrative regulation and judicial regulation,this paper puts forward some suggestions on the regulation of administrative enforcement measures discretion.On the one hand,from the perspective of legislation regulating the discretion of administrative compulsory measures,this paper analyzes the legislative intent and legislative limitations of the discretion space of administrative compulsory measures,and puts forward legislative suggestions on improving the standards of administrative compulsory measures,classifying administrative compulsory measures,clarifying the purpose of administrative compulsory measures,and clarifying the legal rights and obligations of administrative counterparts;On the other hand,from the perspective of administrative regulation of administrative compulsory measures discretion,from the perspective of administrative power operation behavior,this paper puts forward some suggestions on perfecting the procedure blank,connecting procedures and auxiliary procedures.According to the emergency situation and the discretionary characteristics of administrative compulsory measures,this paper puts forward the suggestion that the "dual track system" of administrative organs should apply the theory of administrative compulsory contraction;Finally,from the perspective of judicial regulation of administrative compulsory measures discretion,this paper attempts to analyze the plaintiff’s prosecution qualification of the counterpart of administrative compulsory measures,and bring different types of administrative compulsory measures into the track of judicial review,so as to solve the dilemma of "actionable at the normative level but not at the empirical level".It also analyzes the judicial review standard and scope of administrative compulsory measures’ discretion,in order to solve the dilemma of non trial rationality and excessive review rationality.Then it puts forward some suggestions on the judicial application of flawless discretionary claim,in order to solve the problems of judicial organs difficulty in reviewing the discretion of administrative compulsory measures,such as discretion override,discretion abuse and discretion neglect.