Talk About The Construction Of The Arbitrary Administrative Execution Legal System Of Our Country

Generally speaking, individual produce obligation when defaulting, the modern country governed by law usually forbids relying on oneself to relieve, as the means, one party can only realize the recovery and relief of the right through the court hands. The present question is: When the obligation to produce between administrative subject and individual is defaulted (the obligation which private party defaults is usually a kind of administrative obligation to different from civil obligation), how to deal with it? Defaulting to such administrative obligation, various countries have taken different realizing the way by force. of our country Article 66 stipulate like this "citizen, judicial person, other organization default to specific administrative act also to litigate within legal time limit, the administrative body can apply for the compulsory enforcement of people's court, or the compulsory enforcement abiding by laws."According to judicial explanation of the Supreme People's Court, other single file laws and regulations there is no regulation to arbitrary administrative execution, infer that the administrative body applies for the compulsory enforcement of people's court. In view of the above, our country theory circle force the enforcement pattern summarizing the current administration of our country for "take applying for court's compulsory enforcement as the principle, regard compulsory enforcement of administrative body as the exception and supplement."The power of arbitrary administrative execution belongs to the court in principle, when citizen, judicial person or other organization defaults obligation that stipulating among the administrative decision of handling that administrative body make in accordance with the law, if does not award the power of its compulsory enforcement by the law, it needs to apply for the compulsory enforcement of people's court. The foundation of exceptional is law, define by law that which class government or which administrative body own which kind of power of arbitrary administrative execution, can't overstep. Seeing form the situation that the law has ordained in our country, law authorize administrative body is it force power of execution to own, roughly have the following several kinds of situations, namely belong to the compulsory enforcement in the professional range of every department, ones that belong to every administrative body generally need or a special property power, ect. But our country current kinds of arbitrary administrative execution pattern has a lot of defects in practice, as follows mainly: First, the administrative decision of handling of overwhelming majority must file an application with people's court, it has destroyed the unity of the power of arbitrary administrative execution, and influenced the improvement of administrative efficiency. Second, it has violated with the principle that when taking legal proceedings, the enforcement does not stopping. Third, the implement burden of court is too heavy, affected its normal judicial trial procedure seriously. Fourth, the role of judicature and administration misplaced seriously has damaged the authority of the judicature. The fifth, it is not good to protect the legitimate right of administrative counterpart. The administrative legal system of compulsory execution can roughly be divided into two kinds of modes in our times, namely mode of common law system and continent law system. In a word, Germany, Australia, Japan, the three countries adopt the system of administrative body carry out by oneself mainly, but do not repel the existence that the specific field carries out through court's strength either. America, Britain and France, although the three countries divided to be two legal systems, they all carry out the system through court administration of justice of strength to follow mainly, their main execution way to impel administrative counterpart to fulfill obligations with penalty and sanction which the administration fine, only when authorize clearly in the law, and accord with the situation of the legal condition, way to execute directly that the administrative body could be suitable. Two kinds of modes each have pros and cons. Whether the mode of the arbitrary administrative execution of common legal system his profit lies in: Carry out through judicature body is it prevent from administrative body might caused to execute make one's own decisions without consulting with others and various kinds of damage by oneself to determine, guarantee that arbitrary administrative execution is fair and rational. Its fraud lies in: Reduce administrative efficiency, waste administrative resources, raise the administrative cost, and may lead to the fact the court to work to overload. The mode of the arbitrary administrative execution of continent legal system his advantage lies in: It improves administrative efficiency, realizes the administrative purpose immediately. Because the administrative body has not only a decision that orders power, but also the enforcement power, two power is rolled into one, and it is convenient to exercise naturally. If give the power of arbitrary administrative execution to the courts or other bodies, must influence its administrative efficiency. Certainly, some questions exist in this kind of mode too, if the administrative body totally owns the power of arbitrary administrative execution will cause power to beunrestricted or abuse power and damage citizen's rights and interests, especially under the situation that the power of issuing administrative orders increasing constantly and the social management function increases, it is very necessary and helpful to restrict the power of arbitrary administrative execution which the administrative body owns ,can shift some enforcement power about the citizen's great rights and interests to the court and carry out by the court. In recent years, scholars of our country have carried on helpful exploration around the reform of the current arbitrary administrative execution system, and put forward several different reform train of thought, they are: Award the power of arbitrary administrative execution to the administrative body; Award the power of arbitrary administrative execution to the court; Adopt the mode of relying mainly on compulsory enforcement of judicial authorities, making compulsory enforcement of administrative body subsidiary; And adopt the mode of relying mainly on compulsory enforcement of administrative body, making compulsory enforcement of judicial authorities subsidiary. Synthesize several different reform train of thought the above, I agree with the view of assigning the power of arbitrary administrative execution between administrative body and judicial authorities, and taking compulsory enforcement by oneself in the administrative body as leading factor. The reason is as follows: First, administrative substantial legal relation reciprocity decides the power of arbitrary administrative execution can implement by administrative body. Second, the administrative body is regarded as the main arbitrary administrative execution subject, and the judicial authorities is regarded as the auxiliary arbitrary administrative execution subject, decided by the nature of the power of arbitrary administrative execution, decided by the nature of the judicial power too. Third, through the investigation of humanity history tradition, current living environment and development trend in the future of our country, implementing the mode of mixing taking administrative body as leading factor has feasibility. Fourth, our country current arbitrary administrative execution pattern of relying mainly on court is the result of civil compulsory enforcement system influenced at that time, it is not an ideal choice to apply for court's compulsory enforcement. I think, take compulsory measure taken to the target of carrying out as a basis, from set out to relative people angle of degree that rights and interests influence, can divide the power of arbitrary administrative execution between administrative body and people's court rationally and effectively. Divide it as follows concretely: The coercive measure against the person, general impacts on relative people's rights and interests are all bigger, for example, mandatory detention and mandatory...