The Research Principle Of Administrative Emergency

China today,there is no confirmation on administrative systems, procedures, monographs, related to the principle of administrative emergency,procedural aspects of research is scattered throughout the relevant administrative law tutorial.In addition to the twenty-first century,The state council"Emergency ordinance" clearly that the principle of administrative emergency as a specific administrative act, the government will have no confirmation on the definition and characterization of the executive. Therefore, in our current emergency legal system, there is not enough attention about the principle of administrative emergency system and related procedures.At present the current theoretical circles is still controversial about the concept of the principle of administrative emergency,generally summarized as follows:the principle of administrative emergency means that administrative organs in order to ensure major public interest and the fundamental interests of the citizens,maintain the economic and social order,security the social stability and coordinated development,faced with a major emergencies and other emergency situations can be implementation of administrative emergency measures.To clarify the concept of the principle of administrative emergency to judge accurately, compulsory measures for immediate, administrative discretion, and the principle of administrative emergency linked to the specific administrative acts of comparison and analysis. Such as administrative emergency behavior and compulsory administrative behavior:Although the concept of both is a specific administrative act under special circumstances to administrative action.But, in the judicial practice, the two are different,they are belong to administrative action.Administrative emergency compared with other administrative behaviors that is in an emergency administrative organs of the emergency decision,no corresponding legal basis or departure from the law,is the behavior of the compulsory administrative instant after total special cases.But with the very different from each other. With the guidance of the principle of administrative emergency for administrative emergency right is the power that the administration take the emergency measures in emergency situations,and that is an administrative discretion, an executive privilege.In this kind of emergency state,the law will give place to the executive power.Administrative discretion embodies a kind of special rights in modern administrative law,which is a kind of effective law modernization added.The exercise of administrative discretion easy to more than appropriate "degree", lead to the abuse administrative power and producing corruption.So,in practice,we must control the exercise of discretion scale,and the principle of administrative emergency must also have an exercise legal restrictions.Administrative emergency rights is administrative organs take a kind of special operations to administrative discretion,The amplitude of the legal is different from discretion in the way and randomness of choice.Because of the nature of the exercise of administrative emergency power is very easy to produce ultra vires and caused administrative emergency power abuse,still can lead to authority corruption.So in practice, we must abide by the relevant basic principles, the principle of administrative emergency and administrative efficiency principle, legitimacy and reasonable.The relationship of four basic principles are very close, they are the guidelines when administrative law exercise the administrative rights.In some countries and regions outside the principle of administrative emergency are made specific provisions about emergency management.China’s administrative law scholars also use them as a model to emulate, so in this paper, under the principle of administrative emergency,the emergency power excessive behavior’s produces、 introduces and research are still meaningful.Civil law countries especially in Germany as a representative here. Germany as an example in this paper,as the principle of administrative emergency that the limited nature of the object, Emergency behavior of undue produced litigation is recognized as one of the most troublesome type of proceedings, however, the legal relationship itself is an open, diverse features, plus many non-unilateral, non-custodial bundle of administrative measures and the principle of administrative emergency that the position in the judicial practice, significantly increased.The application of administrative emergency law become more and more widely.Germany administrative court carried on the detailed rules for administrative emergency management aspects of legal,《Civil protection law》(1997),《Civil protection new strategy》(2002), also including 《Traffic security act》、《Railway security act》《Food security act》、《Disaster relief act》As is known to all, the United States is the earliest colonial countries in history.《Stamford bill》 is the earliest state of emergency law, which have been applied till now.lt make all the relevant regulations for the plan of administrative emergency rights and the supervision of administrative emergency law,and the President of administrative emergency exercise of the right.Reflected in legislation the28th,paragraph2of article57,the47th,paragraph3of article59,the32th.Outside the typical viewing their country’s the principle of administrative emergency that the legislative status quo,but also from the legislative point of view, theoretical research, the judicial point of view about our country’s the principle of administrative emergency that reproduce the status quo. For example, from a legislative point of view, our country in1995and has not been the principle of administrative emergency types of provisions, only in the constitution form did a general provision. But we from these provisions, and did not find traces of the proceedings on the principle of administrative emergency.Until2004,The state council promulgate《Emergency answer legal》 make a formulation for the principle of administrative emergency.From the point of view of theoretical research, the principle of administrative emergency started relatively late in our country, a weak foundation, and the scholars study was only confined to the judicial practice in a response to the problems encountered. From this phenomenon is not difficult to analyze, the entire administrative law studies have also largely in a note to explain the research stage. Although the theoretical study of China’s the principle of administrative emergency process was slow, but has achieved a certain academic achievements. So far, we have not confirmed baking expertise on the principle of administrative emergency work, and administrative emergency system and administrative system of review afterwards,only scattered about the teaching materials, or on the administrative law among only a brief introduction, very few authors have systematically localization of research and study. From the perspective of judicial practice, due to legislative and administrative emergency system and administrative emergency procedures on the academic and administrative requirements for the principle of administrative emergency,and the definition is not very detailed and clear. Therefore, in China on the principle of administrative emergency judicial practice of executive power abuse phenomenon,confirmed the sentence on the effectiveness of the emergency right understanding of the phenomenon of error.Thus,on this basis to clear the principle of administrative emergency procedures and scope and perfect the administrative emergency law system,So that the principle of administrative emergency can reach an systematic and localization.