Research On Administrative Guarantee Behaviors

Guarantee is a mature and ancient system in the civil field,but it is widely used in the current administrative activities,and plays an important role in ensuring the performance of administrative obligations.So it deserves to be attentioned.In the first part of the paper,we first find out the research field,find out the common guarantee phenomenon in the administrative activities,and find that it presents the characteristics of confusion of setting,single form of guarantee,imbalance of development,and much compulsory guarantee.The second part is the theoretical analysis of the guarantee of administrative activities.First of all,the integration of public and private law,the advantages of guarantee itself in ensuring the performance of administrative obligations,and the lack of existing administrative law enforcement means provide an opportunity for the rise of guarantee in administrative activities.Secondly,it generalizes and defines the phenomenon that the administrative organ requests or allows the administrative counterpart to provide certain guarantee in order to meet the needs of administrative management with the term "administrative guarantee".Finally,the paper analyzes the nature of administrative guarantee,and concludes that administrative guarantee belongs to the category of administrative contract,which conforms to the characteristics of one party's constancy,administrative purpose,administrative benefit and agreement.The purpose of qualitative analysis is not to use the existing theories to set up administrative guarantee completely,but to explore its essence and standardize its development.The third part,based on the investigation and theoretical analysis of the current situation of administrative guarantee,puts forward the standardized path of administrative guarantee.In the first section,when analyzing the establishment authority of administrative guarantee,it is divided into two categories: facilitating the administrative counterpart and safeguarding the public interest.The former is not only conducive to ensuring the safety of the performance of administrative obligations and the order of administrative activities,but also brings convenience to the production and life of the administrative counterpart.Its establishment does not need to adhere to the traditional idea of "law without authorization can not be done",which can be set by laws,regulations and rules.Although the latter can provide guarantee for the performance of the administrative obligations of the counterpart and protect the legitimate rights and interests of special groups,So as to safeguard the public interest,but this kind of guarantee has certain infringement,so it should be set prudently by law.In terms of the scope of application of administrative guarantee,it is considered that administrative guarantee should be performed immediately and illegal private interests cannot be created.When establishing guarantee in the field of administrative license,on the one hand,it must be grasped under the provisions of the administrative license law of the People's Republic of China(hereinafter referred to as the administrative license law),and the administrative guarantee created in violation of this law should be cleared up.On the other hand,we should not rely on the supervision function of administrative guarantee in the field of administrative license blindly,but should use all kinds of administrative law enforcement means to serve the administrative activities scientifically and comprehensively.If the purpose can be achieved through in-process and post supervision,the administrative guarantee may not be set up at the licensing stage.The second section proposes that we should learn from the private law guarantee to enhance the use of the concept of contract.At the same time,we should learn the advantages of civil guarantee system,enrich the forms of administrative guarantee,reduce the use of cash deposit,set up reasonable guarantee amount,and grasp the balance between risk and efficiency.The third section puts forward solutions to the conflicts caused by administrative guarantee.According to Article 10 of the civil code of the People's Republic of China(hereinafter referred to as the civil code),civil disputes should be handled in accordance with the law.Therefore,it can be applied only when the law expressly stipulates that administrative power can intervene in civil disputes,or the law expressly stipulates that administrative guarantee can be used to solve civil disputes.At the same time,in the case of administrative power using administrative guarantee to intervene in civil disputes,there is no explicit provision of law,the administrative organ does not have the power of administrative enforcement,and it is not allowed to directly execute the guarantee property of the administrative counterpart.In order to balance the conflict between the private interest and the public interest,we can divide the priority of the compensation according to the time of the civil claim and the legal use of the administrative guarantee deposit.