I. Connotation of Administrative Coercion Administrative Coercion refers to the behavior that citizens, legal persons or other organizations fail to perform their obligations stipulated in administrative decisions made by administrative organs according to law, and the relevant state organs force them to perform their obligations according to law or reach the same state as their obligations. Administrative coercion is based on the premise that citizens, legal persons or other organizations fail to perform their administrative obligations. Under normal circumstances, this kind of non-performance must also be intentional. There are two cases of non-performance of administrative obligations. One is to engage in acts prohibited by law, such as building houses on land that is not allowed to build houses. The other is not fulfilling the obligations that must be fulfilled, such as paying taxes without paying them. Both cases belong to the scope of administrative enforcement. The purpose of administrative coercion is to force citizens, legal persons or other organizations to perform administrative obligations. Therefore, enforcement should be limited to administrative obligations and should not go beyond the scope of administrative obligations undertaken by the parties.
Second, the difference between administrative coercion and civil coercion and administrative punishment
(1) Administrative law enforcement and civil law enforcement
As law enforcers, they have a lot in common. For some countries, there is no substantive difference between administrative enforcement and civil enforcement. Are part of judicial power, such as the United States. For other countries, although administrative coercion and civil coercion are separated, administrative coercion also imitates civil coercion in content and manner, such as Germany. From the specific situation of our country, the difference between administrative enforcement and civil enforcement lies in:
(1) From the perspective of the subject of enforcement, the subject of administrative enforcement in China is generally the people's court; However, under the circumstances stipulated by law, it can also be an administrative organ. This is different from the fact that the subject of civil execution can only be the judicial organ.
(2) From the execution basis, the basis of administrative enforcement is administrative decision, even if it is enforced by judicial organs, its execution basis is also administrative decision. The basis of civil execution is the effective judgment, ruling or conciliation statement of the people's court or arbitration institution.
(3) From the object of execution, the object of administrative enforcement is relatively wide, which can be things, behaviors and people. The object of civil coercion is limited to things.
(4) From the implementation results, there is no reconciliation in administrative compulsion, and the obligor can only be forced to perform his obligations; Civil enforcement can perform reconciliation.
(B) the difference between administrative coercion and administrative punishment
The similarity between administrative coercion and administrative punishment is that both parties fail to fulfill their legal obligations. However, there are two situations in which the parties fail to perform their legal obligations. One is that this legal obligation must be fulfilled, which leads to administrative coercion. For example, if the parties fail to fulfill their tax obligations, they must perform them compulsorily; In another case, it is impossible to fulfill this obligation, so it can only be given administrative punishment, so that it can learn a lesson and must fulfill its obligations in the future. If you run a red light in violation of traffic rules, you can only be fined at this time, so that you can abide by traffic rules in the future, and it is impossible to enforce them. In nature, administrative punishment is to impose new obligations on the parties who fail to perform their obligations, while administrative coercion is to enforce the parties who fail to perform their original obligations. This is the general dividing line between administrative coercion and administrative punishment. Of course, the alternative execution and execution penalty in administrative enforcement also include new obligations, but the purpose of this new obligation is still to fulfill the original administrative obligation and does not end with the new obligation. This is what the law must pay attention to when setting punishment or coercion. In practice, there are also cases where punishment replaces enforcement, that is, punishment replaces the obligations that the parties must perform. For example, some local administrative organs do not apply to the people's court for compulsory demolition, but close the case with fines, which will actually encourage illegal activities and is not desirable. In addition, the types of administrative punishment and administrative coercion are also very different. Administrative punishment mainly includes warning, fine, confiscation of property, revocation of permits and licenses, order to stop production and business, and administrative detention. Administrative enforcement takes the form of execution on behalf of others, execution of fines, compulsory collection and direct execution. Because administrative punishment is a one-time commitment, when administrative punishment is difficult to implement, it still needs to be backed by administrative coercion.
Three. Analysis of the current definition of administrative compulsion. There are chapters and definitions about administrative coercion in most administrative law works in China. At first glance, they seem very similar. After careful analysis, we can find some theoretical problems. Now, it may be helpful for us to understand administrative coercion by extracting several representative definitions and then analyzing them.
1, "In the administrative legal relationship, when the parties fail to perform their obligations in administrative law, the state administrative organs can take legal compulsory measures to force the parties to perform their obligations, which is administrative law enforcement and a specific administrative act. Also called administrative execution. "
2. "Enforcement behavior refers to the administrative behavior that the administrative organ takes compulsory measures to eliminate the resistance of the managed person and force him to perform because the managed person resists the legal behavior of the administrative organ and fails to fulfill the legal requirements put forward by the administrative organ."
3. "Administrative coercion, also known as administrative coercion, is the enforcement of compulsory measures taken by the state to the parties who refuse to perform the obligations stipulated in the administrative law or their related objects in order to promote the performance of an obligation; Or for the benefit of the public, take compulsory measures against specific people or things to restrict the exercise of a right. "
4. "Administrative coercion is an administrative act in which administrative organs use coercive measures in state administration to force parties who fail to perform their legal obligations."
5, "administrative coercion, is a compulsory measure in administrative law taken by the state administrative organs against the parties who violate the obligations stipulated in the administrative legal documents, and shall be implemented by the state administrative organs. Administrative coercion is a specific administrative measure for a specific person, also known as administrative coercion. "
6. "Administrative coercion refers to the act of an administrative organ or an administrative organ applying to a people's court to compel citizens, legal persons or other organizations that refuse to perform their obligations in administrative law to perform their obligations."
7. "Administrative coercion refers to an administrative act in which an administrative organ compels a relative person to perform an obligation by force, or to achieve the same state as performance, which is usually called administrative coercion."
8. "Administrative coercion refers to an administrative coercion in which citizens, legal persons or other organizations (administrative counterparts) refuse to perform their obligations under the administrative law, and the relevant state organs take necessary coercive measures according to law to force citizens, legal persons or other organizations to perform their obligations or reach the same state as performing their obligations."
9. "Administrative coercion, referred to as administrative coercion or administrative coercion, refers to a specific administrative act in which the counterpart refuses to perform legal obligations, and the administrative organ takes coercive measures according to law to force him to perform obligations or others to perform obligations on his behalf, so as to achieve the same purpose."
The similarities of the above definitions all point out that administrative coercion is based on the premise that citizens, legal persons or other organizations fail to perform their legal obligations. The purpose of administrative coercion is to force the parties to fulfill their legal obligations. This is undoubtedly correct, but there are many differences in these definitions, which actually reflect our inaccurate understanding of administrative coercion. (1) equates administrative coercion with administrative coercion. In fact, the concept of administrative coercion is broader than administrative coercion. It includes administrative enforcement, administrative coercive measures and administrative immediate coercion. (2) equate administrative coercion with coercive measures. But the two are not exactly the same in general. Administrative coercion is to force the parties who fail to perform their legal obligations to perform. Administrative coercive measures are generally aimed at preserving evidence or stopping illegal acts. Sometimes, the purpose of taking coercive measures is to ensure future implementation. Of course, in some cases, administrative compulsory measures may also appear as a prelude to administrative compulsory execution, which makes it difficult to distinguish the two. (3) equate administrative coercion with administrative execution. As mentioned earlier, this view was very popular in early Germany and Austria, but it was abandoned after World War II because it might condone the arbitrariness of administration and was not conducive to protecting the legitimate rights and interests of citizens. After the founding of the People's Republic of China, although it has not been clearly expounded in theory for a long time, it is certain in practice: administrative execution is separated from administrative enforcement, and administrative law enforcement organs have the right to make administrative decisions, but generally have no enforcement power. Only when the law has a clear authorization, the administrative organ has the power of enforcement within the scope of the law, and after making a decision, it can implement administrative enforcement in accordance with legal procedures. There is no doubt that administrative decisions can be enforced, but administrative power does not mean that administrative organs can enforce them themselves. The separation of administrative decision-making power from administrative coercive power and administrative punishment power is an inevitable trend of the development of modern administrative law and China administrative legal system. (4) Administrative compulsion is called administrative act or specific administrative act. When an administrative organ enforces it by itself according to law, it can of course be called an administrative act or a specific administrative act. However, if an application is made to the people's court for execution, and the court examines and agrees to make a ruling for execution, it belongs to judicial execution and should not be called an administrative act or a specific administrative act. (5) In the definition of general administrative compulsion, most of them clearly point out that the basis of administrative compulsion should be administrative decision, not direct execution according to law.
Four. The basic system of administrative enforcement in China is: the principle of applying to the people's court for enforcement, except administrative enforcement. (Note: The law that clearly stipulates this point is the Administrative Procedure Law. Article 66 of the Law stipulates: "If a citizen, legal person or other organization fails to file a lawsuit or perform a specific administrative act within the statutory time limit, the administrative organ may apply to the people's court for compulsory execution, or enforce it according to law". There is the word "according to law" before the enforcement of administrative organs, which shows that the enforcement power of administrative organs is only available under the special authorization of law. )
(1) principle of applying to the people's court for enforcement: the power of administrative enforcement belongs to the court in principle. When citizens, legal persons or other organizations fail to perform the obligations stipulated in the administrative decisions made by administrative organs according to law, and the law does not give them the power of enforcement, they all need to apply to the people's court for enforcement. Applying to the people's court for enforcement is not a lawsuit to the people's court, which is different from that in foreign countries. The application is not a lawsuit, and there is no need to go through litigation procedures. Application is more efficient than litigation and meets the requirements of administrative management. However, application is not a dispensable procedure. If the application is approved and agreed by the court, the original administrative enforcement decision will become a judicial enforcement decision, and the court can use its judicial enforcement power to force the parties to perform their obligations. Therefore, after an application is filed by an administrative organ, the court must carefully examine it, not only in form, but also in substance. The application submitted to the administrative organ will be enforced by the court according to law after examination; If it is illegal after examination, it will be returned to the administrative organ and will not be executed. Is it necessary to apply to the people's court for enforcement of laws and regulations? Otherwise, the people's court will not accept it? Before the implementation of the administrative procedure law, the administrative organ must have the provisions of laws and regulations to apply to the people's court for compulsory execution. The "Regulations" have no right to make this provision. This factor was taken into account when formulating the Administrative Procedure Law. If we still adhere to the provisions of laws and regulations, a large number of specific administrative acts made in accordance with the regulations will lose the backing of enforcement and become empty talk. Under the present circumstances, this will bring incalculable consequences to the government. Therefore, Article 66 of the Administrative Procedure Law specifically stipulates: "If a citizen, legal person or other organization fails to file a lawsuit or perform a specific administrative act within the statutory time limit, the administrative organ may apply to the people's court for compulsory execution, or enforce it according to law." Accordingly, if a citizen, legal person or other organization fails to perform its obligations and does not bring a lawsuit, it is not restricted by laws and regulations, and the administrative organ may apply to the people's court for compulsory execution. As for whether it can be implemented, it needs to be reviewed by the people's court. This is the first general principle of administrative law enforcement in China's basic law. After the implementation of the Administrative Procedure Law, laws and regulations should no longer restrict the application for execution. After the administrative organ applies to the people's court for compulsory execution, how long should the people's court give a reply? If the people's court does not agree to compulsory execution, can the administrative organ appeal to the higher court again? How long will it take the higher court to reply? How to calculate the implementation cost, etc. Because there is no uniform regulation so far, and even conflicts often occur, it is necessary to make regulations.
(two) the basis for the exception of the administrative organ's self-enforcement is the law, which clearly stipulates which level of government or which administrative organ department enjoys which kind of administrative coercive power, which shall not be exceeded. Without special provisions of the law, administrative organs will not enjoy administrative coercive power. Judging from the existing laws and regulations in China, there are roughly the following situations in which the law authorizes administrative organs to enjoy the power of enforcement:
(1) Enforcement, which belongs to the professional scope of each department, is generally stipulated by law and specially authorized to the competent administrative organ. For example, regarding personal rights, there are compulsory summons, compulsory detention (Regulations on Administrative Penalties for Public Security) and compulsory performance (Military Service Law). Belong to property and other rights, such as late payment (measures for the collection of state-owned enterprise regulation tax), compulsory redemption (violation of the detailed rules for the implementation of foreign exchange management punishment), compulsory license (patent law), etc.
(2) In principle, things that administrative organs generally need, such as compulsory allocation and compulsory auction of property, need to apply to the people's court for compulsory execution, and the law only grants to a few administrative organs such as taxation (tax administration regulations), customs and auditing.
(3) A special property right, that is, the demolition of houses and the return of land, needs special care, because it is the "lifeblood" of citizens. In principle, it should apply to the people's court for compulsory execution. However, article 15 of the Regulations on the Management of Urban House Demolition stipulates that the people's governments at or above the county level may instruct the relevant departments to carry out compulsory demolition, and the competent department of house demolition may also apply to the people's court for compulsory demolition. It can be seen that compulsory auction or compulsory allocation must be stipulated by law. These regulations are invalid. That is to say, according to the provisions of the Administrative Punishment Law, the establishment right of compulsory auction or compulsory allocation belongs to the law, and other norms, such as regulations, have no right to set it. This is a general rule, which applies not only to the case of non-payment of fines, but also to other cases. It must be emphasized that the law clearly stipulates what kind of enforcement power the administrative organ has, which means that the law authorizes it in a positive way; On the negative side, it also means that administrative organs do not enjoy other kinds of administrative coercive power.
Five, the types of administrative coercion can be classified according to different standards.
First, according to whether law enforcers can ask people to perform their obligations instead of legal obligors, it can be divided into indirect coercion and direct coercion. 1. Indirect coercion, that is, forcing legal obligors to perform their obligations indirectly. It can also be divided into execution by proxy and execution of punishment. 2. Direct coercion, when indirect coercion is applied, fails to achieve the purpose, or cannot use indirect coercion means such as alternative execution and execution of penalty, or it is too late to use indirect coercion because of emergency. The organ with the power of enforcement can also directly force the legal obligor to perform his obligations or reach the same state as performing his obligations according to law. Direct coercion is the most effective way to force legal obligors to perform their obligations or achieve the same state as performing their obligations, and it is also the most severe means in administrative actions. It is not conducive to the direct and effective realization of administrative purposes, but also easy to damage or impact the legitimate rights and interests of citizens. Therefore, direct execution must be very cautious, and the conditions for direct execution must be strictly stipulated: ① The power of administrative organs to implement direct execution must be explicitly authorized by law. If the law does not explicitly authorize it, it must apply to the people's court for compulsory execution. ② Take direct coercive measures only after exhausting other indirect coercive measures. ③ The conditions and procedures for direct execution must be strict and clear. There are many measures directly implemented in our special law, but most of them have no provisions on conditions and procedures. This situation needs to be improved urgently. (4) In direct execution, the principle of proportionality (also called the principle of proportionality abroad) must be strictly implemented, which is limited to realizing the obligations that the obligor should undertake, and cannot be expanded beyond the scope of its obligations or cause damage to the person and property of the obligor. According to its content, direct execution can be roughly divided into personal coercion, behavioral coercion and property coercion.
Second, according to the way of administrative enforcement, it can be divided into: 1. Compulsory summons. Such as the provisions of Article 34 of the Regulations on Administrative Penalties for Public Security. 2. Compulsory detention. Such as the provisions of Article 35 of the Regulations on Administrative Penalties for Public Security. 3. Compulsory performance. As stipulated in article 6 1 of the Military Service Law. 4. Deportation. Such as the provisions of Article 27 of the Law on the Entry and Exit of Foreigners. 5. Forced repatriation. The provisions of Article 33 of the Law on Assembly, Parade and Demonstration. 6. Compulsory isolation treatment. Article 24 of the Law on the Prevention and Control of Infectious Diseases stipulates that. 7. Compulsory license. Article 52 of the patent law stipulates that. 8. Compulsory withholding. Twenty-sixth provisions of the Measures for the Administration of Tax Collection. 9. Forced return. Articles 43 and 52 of the Land Management Law stipulate that. 10. Forced demolition. Articles 40 and 42 of the Town Planning Law stipulate that. 1 1. Offset payment. Article 37 of the Customs Law stipulates that. 12. Forced auction. Article 26 of the Law on the Administration of Tax Collection stipulates that. 13. Late payment. Article 20 of the Law on the Administration of Tax Collection stipulates that. 14. Deduction of wages or seizure of property as compensation. Article 38 of the Regulations on Administrative Penalties for Public Security stipulates that. 15. Forced eradication. Article 3 1 of the regulations on administrative penalties for public security stipulates.
Third, according to the nature of administrative coercion, it can be divided into: 1. Administrative enforcement, such as compulsory distribution of fines and confiscation; 2. Implementing sanctions, such as collecting weapons by public security organs; 3 inspection and law enforcement, such as the control and inspection of metrological products by metrological administrative organs; 4. Preventive law enforcement, such as compulsory prevention of infectious diseases by health authorities; 5. Repressive law enforcement, such as the traffic management department forcibly stopping vehicles or pedestrians who violate traffic rules; 6. Protective law enforcement, such as the protection of alcoholics by public security organs; 7. Education and law enforcement, such as the censorship of prostitutes and clients by relevant authorities; 8. Implement preservation measures, such as seizure, sealing up and freezing of the property of illegal suspects by relevant authorities.
The procedure of administrative enforcement of intransitive verbs is based on the principle of applying to the people's court for enforcement in our country. Except for the enforcement by the administrative organs themselves, the subject of enforcement is the people's court in most cases, and the subject of enforcement is the administrative organ when there are special provisions in the law. The two are not exactly the same in execution procedures.
(a) the people's court execution procedures, the people's court administrative enforcement, in fact, there are two kinds of execution procedures. One is the trial and judgment of administrative litigation, which is the execution procedure of court judgment documents; The other is an execution procedure that only goes through administrative procedures and the administrative organ applies to the court for compulsory execution. These two situations are not exactly the same. The main difference is that the application execution of administrative organs still needs court review. After approval, the subsequent procedures are roughly similar. The execution procedure generally includes the following questions: ① Jurisdiction. ② Application execution period. 3 review. (4) assist in implementation. ⑤ implementation. 6. Execute blockade. Include execution suspension and execution termination. ⑦ Implement remedial measures. There are two kinds of remedial actions: revocation and re-execution.
(2) Procedures for enforcement by administrative organs When the law stipulates that the enforcement shall be carried out by the administrative organs themselves, generally only the contents of enforcement are specified, and the procedures for enforcement are not specified; At present, there is no uniform regulation on the enforcement procedure of administrative organs in China, so the enforcement procedure of administrative organs still belongs to the "discretion" of the competent administrative organs. In practice, the executive procedures of administrative organs should be divided into general procedures and special procedures. General procedure is a necessary procedure that is universally applicable to all administrative organs for enforcement; Can be stipulated by the administrative compulsory law; Special procedures should have some exceptions, considering that different implementation contents have different requirements. Special procedures can be stipulated separately by a separate law granting executive power to administrative organs. The following mainly refers to the general procedure of law enforcement by administrative organs. There are roughly the following steps: ① Administrative enforcement of decisions. According to facts and laws, making an administrative compulsory decision is the first step to implement administrative compulsory. A. investigation. B. make a decision. 2 warning. ③ Prepare for execution. (4) execution. In short, with the development of society, the administrative field is gradually expanding, and the social and public affairs faced by administration are increasingly complex and diverse. Faced with this situation, in order to ensure the implementation of administrative obligations and the realization of the expected state, the traditional administrative coercive means have exposed many limitations and inadaptability. Therefore, according to the characteristics and needs of different administrative management, in addition to the traditional administrative coercive means, it is necessary to try to adopt new coercive means to adapt to the changing needs of social development and change.
Legal basis:
People's Republic of China (PRC) administrative law
Article 3 The people's courts shall safeguard the rights of citizens, legal persons and other organizations to prosecute and accept administrative cases that should be accepted according to law.
Administrative organs and their staff shall not interfere with or obstruct the people's courts in accepting administrative cases.
The person in charge of the sued administrative organ shall appear in court to respond to the lawsuit. Unable to appear in court, it shall entrust the corresponding staff of the administrative organ to appear in court.
Article 4 The people's courts independently exercise jurisdiction over administrative cases according to law, and are not subject to interference by administrative organs, social organizations or individuals.
The people's court shall set up an administrative tribunal to hear administrative cases.
Article 5 In trying administrative cases, the people's courts shall take facts as the basis and the law as the criterion.
Article 8 The parties have equal legal status in administrative litigation.