The Study On The Execution Of The Specific Administrative Actions During The Period Of The Administrative Reconsideration

The executive power is one of effectiveness of the specific administrative actions, it refers specifically to a force that the administrative organs take appropriate measures to the administrative counterparts who do not fulfill obligations to fulfill corresponding obligations according to the effective specific administrative actions, its performance in the form is the enforcement power. The twenty-first clause in <The Administrative Reconsideration Law of The People’s Republic of China> is about the specific systems for administrative reconsideration of the specific administrative actions’execution, it has established the principle of not stopping executing agency action during the period of appeal in the legal terms in China.However,in our present situation, there are many contradictions and arguments in Chinese theoretical research about the execution of the specific administrative actions on the one hand; more and more attentions are paid to the principle of not stopping executing agency actions during the period of appeal in legal practice on the other hand.Therefore,researching into the subject not only has important theoretical significance but also has important applications in reality. For instance, it can supply solutions to the theoretical argument now with new and beneficial solution technique; it can make the enforcement system of the specific administrative actions during the period of the administrative to meet the new requirement of society; it can better safeguard the legitimate and interests of the relatives and develop the function of the administrative reconsideration.Apart from the introduction and conclusion, this article can be divided into four parts. The main opinion in each part is as follows:The first part is conspectus, mainly about the execution of the specific administrative actions during the period of the administrative reconsideration. Of those, the traditional view extends the intension and extension of the execution of the specific administrative actions greatly. Traditionally speaking, enforcement and automatic fulfillment belong to the execution. In the respects of the relation between execution and other effect rules, the traditional view does not distinguish execution and other effect rules strictly, although those rules are compassable in form but there are conflicts between them in fact. This part makes the following judgments:the abstract administrative acts do not have execution, the specific administrative actions of beneficial belong to the execution, it clears the relationship between the executive power and other powers of the specific administrative actions. Finally, it draws a conclusion that binding force and execution are the only two aspects of the administrative effectiveness.The second part is the comparison about the theme. The extraterritorial systems are divided into three kinds with the standard of execution, no-execution or different treatment. It includes the relevant systems of Germany, Japan, Switzerland, South Korea, Taiwan of China, Macao of China and other countries and regions separately. This part has made a comparative analysis of the execution and no-execution:standard of right; presumptive rightfulness; the priority of administration and public welfare are the basics of the two theories, democratic struggle is the background, the level of the democratic consciousness and empowerment decided the different choice, the comparison of different interest demands is the fundamental principle of the censorship, there is only a slight difference in the specific operation.The third part is the analysis of the present situation about the execution of the specific administrative actions during the period of the administrative reconsideration. It is concluded that the current system exists many ills such as oppugnation to the theoretic base of presumptive leality;unequal position; inefficiency; exotic system is ununiversal;the contradiction of the double tracks systems; the shortage of our relief and compensation, according to the analysis of performance,bankground and running conditions.The last part is the reconstruction of the executive system of the specific administrative actions during the period of the administrative reconsideration. This part is to solve the problems from the views of theory and practice:the equilibrium theory of the administrative law is the guiding theory; the concrete measures lie in the following six aspects:setting stopping executive principle; establishing reasonable exceptions;regulanzing the reviews and decisions of the exceptions; shortening the procedural time of the administrative reconsideration; setting the preservation procedure and preliminary execution in the administrative reconsideration; perfecting compensation and indemnity systems to relative persons.