In fact, it is the protection conflict between the compulsory power of the state and the private rights of citizens.
Strictly speaking, the administrative compulsory law is only the procedural law of administrative behavior. The reason why special legislation clarifies its operating procedures is to prevent administrative organs from abusing their rights and infringing on citizens' legitimate rights and interests. It must be clear that the administrative compulsory law is based on legal and effective legal documents, and this premise must be based on the inaction of citizens or legal persons or administrative violations, while the administrative compulsory law is only a legal procedure created to punish illegal administrative acts. In other words, whether it is administrative compulsory measures or administrative compulsory measures, it must be carried out around the administrative violations of citizens and legal persons, which is a part of the administrative punishment procedure.
Just as the fact of criminal procedure law can not be separated from the division of responsibilities of public security, procuratorial and court, there are constant legal procedures at all stages.
At the same time, in order to realize the trial of criminals, compulsory measures must be taken to detain criminal suspects.
"Administrative Enforcement Law (Draft)" stipulates; The term "administrative coercion" as mentioned in this Law refers to administrative coercive measures and administrative compulsory execution.
The ways of administrative compulsory measures are:
(1) restricting the personal freedom of citizens;
(2) sealing up places, facilities or property;
(3) seizing property;
(4) Freezing deposits and remittances;
(five) forced entry into the house;
(6) Other administrative compulsory measures as prescribed by law.
The ways of administrative enforcement are:
(a) to eliminate obstacles, restitution and other obligations to perform;
(two) the execution penalty of additional fines or late fees;
(3) Transfer of deposits and remittances;
(4) auctioning or disposing of the sealed-up or detained property according to law;
(5) Other enforcement methods as prescribed by law.
Administrative coercion is only an administrative procedure law, which is attached to the administrative punishment procedure law and cannot be implemented at will.
Otherwise, the administrative compulsory law and the administrative punishment law will have a substantial conflict. Simply specifying the types of administrative coercion can easily make people think that all administrative organs have the right to exercise administrative coercion, or even directly implement administrative coercion first.
We know that the administrative punishment that restricts personal freedom is often only the public security punishment of public security organs and national security, and other administrative organs do not have this right; Only public security organs, tax authorities, state security organs, customs and other law enforcement organs have the right to freeze deposits and remittances in accounts; Forced entry is also a legal act of public security organs, state security organs and tax authorities.
From this point of view, administrative coercive measures are mostly administrative actions of some administrative organs in the process of relative inaction, administrative law enforcement or administrative punishment.
Especially when it comes to personal freedom and property safety, there are even fewer organs that can exercise administrative compulsory measures.
There are so many state administrative organs, and the legal professional level of the staff is uneven. If we do not strictly limit the organs and scope of exercising administrative coercive power, there will be cases of abusing administrative power to infringe on the legitimate rights and interests of citizens and legal persons.
Therefore, it is not enough to list the types of administrative coercion, but also to make a legal definition, making it clear that administrative coercion is a code of conduct established for the purpose of administration according to law, scientific implementation of administrative punishment, standardizing social management order and standardizing the implementation of national administrative coercion.
Some people think that based on the absoluteness of property rights, administrative compulsory entry into households should be absolutely ruled out. This view actually confuses several different legal concepts. Property right is a civil legal norm. Administrative compulsory law is an administrative legal relationship. Administrative compulsory law is not substantive law. It does not specifically examine and judge whether the root of an administrative act fully meets the requirements of substantive law. It is only a cooperative administrative measure to realize administration according to law or implement administrative punishment. That is to say, if there is no administrative decision, punishment and investigation made according to law, and the parties do not actively cooperate with such administrative punishment and investigation, there is no need for administrative coercion. What's more, if a murderer who is being hunted escapes into a house, and the gangster threatens the life safety of the residents, and the residents dare not open the door to let the police or other rescuers enter at this time, can't the gangster be allowed to get away with it at this time without the permission of the right holder, or even hurt the lives and health of innocent people? Mechanically exaggerating the absoluteness of real right and excluding all rights is actually a kind of harm to the owner of real right. The absolutization of real right cannot oppose the illegal acts discovered or handled by the competent authorities according to law. However, the organs and procedures for exercising this right must be strictly controlled according to law. Administrative compulsory measures restricting personal freedom must be clearly defined as compulsory measures for public security administrative punishment procedures of public security organs, and no other administrative organ may exercise them. Compulsory acts such as freezing deposits must also be implemented by a few administrative organs. However, administrative enforcement should mostly be exercised by specialized enforcement agencies or people's courts, and it is an inevitable requirement of administration according to law to avoid the situation that multiple agencies exercise administrative enforcement power at the same time. The administrative licensing law protects the legality of administrative acts, the administrative punishment law punishes administrative illegal acts, and the administrative compulsory law provides support and guarantee for the administrative punishment law. Although the three laws have their own emphases, the dependence of administrative compulsory law is more prominent. Don't overemphasize the substantive nature of administrative compulsory measures, but ignore the procedural nature of compulsory measures. More importantly, the administrative enforcement law cannot surpass the administrative punishment law.