Administrative coercion refers to a specific administrative act that the administrative organ imposes coercion on the person and property of the counterpart in order to prevent or stop the illegal acts, dangerous situations and adverse consequences that are occurring or may occur, or to preserve evidence and ensure the smooth investigation and handling of cases. From1March, 1999, the draft administrative compulsory law was drafted 10, and finally submitted for the third time on August 24th, 2009. This is another law aimed at restraining administrative power after the Administrative Punishment Law and the Administrative Licensing Law. After five deliberations, the National People's Congress Standing Committee (NPCSC) passed the Administrative Enforcement Law on June 30th to further standardize the establishment and implementation of administrative enforcement. As far as the basic spirit of the draft is concerned, it will not be dissolved when it is officially released. What is really worrying is that after the release and implementation, the specific executors may have an adaptation period. After all, I care that your condescending attitude has become a strong psychological set of administrative law enforcement. But people-oriented administrative civilization is an irreversible trend. Administrative coercion includes two types, one is administrative coercive measures, and the other is administrative coercive execution.
Mandatory type
Administrative coercion refers to an activity or system in which the administrative subject fails to fulfill his obligations to the counterpart because of the emergency, that is, to force the personal freedom and property of the counterpart to achieve the expected administrative purpose.
Legislative background
10 years later, the draft administrative compulsory law was "activated" again. Drafting began on March 1999 and was submitted for the third time on August 24th, 2009. The draft Administrative Enforcement Law lasted 10 years, spanning the 10th and 11th the National People's Congress Standing Committee (NPCSC). The Administrative Enforcement Law is another law aimed at restraining administrative power after the promulgation of the Administrative Punishment Law and the Administrative Licensing Law. The above three laws are called "Trilogy" of China's administrative legislation. 1996 and 2003, China successively promulgated the Administrative Punishment Law and the Administrative Licensing Law, aiming at curbing "disorderly punishment" and ending "excessive examination and approval" respectively. Experts pointed out that the administrative compulsory law is a supporting law in the field of administrative law, and its promulgation marks an important step in building a complete administrative legal system in China, which will have a great impact on promoting the government to administer according to law, ensuring and supervising administrative organs to perform their duties, and protecting citizens' rights and interests.
According to the provisions of the Legislative Law, if a bill is not put on the agenda of the Standing Committee meeting again after two years, the bill will be terminated. Therefore, many media believe that the third trial is more to activate this legal case. In response to this statement, Zhang Shicheng, deputy director of the Administrative Law Office of the the National People's Congress Standing Committee (NPCSC) Municipal Law Commission, said that the two-year deadline has indeed arrived, and if it is not reviewed, the case will be invalid. However, he also stressed that after years of in-depth research in all aspects, it should be said that the conditions for the review and adoption of this law are certain.
Demonstration evaluation
The establishment of administrative compulsion needs to be demonstrated and evaluated in advance. The draft submitted for deliberation stipulates that if the drafting of laws and regulations sets administrative compulsion, the drafting unit shall listen to opinions in the form of hearings and demonstration meetings, and explain the necessity, possible impact and the situation of listening to and adopting opinions to the designated organs.
The establishment organ of administrative compulsion shall regularly evaluate the administrative compulsion it has set; If the established administrative compulsion is considered inappropriate, the relevant provisions on the establishment of administrative compulsion shall be revised or abolished in time. At the same time, the draft also stipulates that citizens, legal persons or other organizations may put forward opinions and suggestions on the establishment and implementation of administrative coercion to the establishment and implementation organs.
main content
1. The subject of law enforcement must be a formal law enforcement officer. After studying with the Legislative Affairs Office of the State Council, the NPC Law Committee suggested adding two items. The draft stipulates that the power of administrative compulsory measures shall not be entrusted. Administrative compulsory measures shall be implemented by qualified public law enforcement personnel of administrative organs, and other personnel shall not implement them.
2, the administrative organ shall not implement water and power cuts at night.
3, the administrative organ shall not implement administrative enforcement at night or holidays. In violation of the provisions of this law, enforcement is carried out at night or on holidays, and the administrative organ at a higher level or the relevant department shall order it to make corrections, and the directly responsible person in charge and other directly responsible personnel shall be punished according to law.
4, the administrative organ shall not stop water supply, power supply, heating, gas supply and other ways to force the parties to perform administrative decisions.
5. The daily necessities of individual citizens and their families shall not be detained.
6. The contents of the draft take care of people's basic survival needs. While stipulating that the administrative power has the right to seal up and detain, it also stipulates that the daily necessities of individual citizens and their families shall not be sealed up or detained.
7, the implementation of administrative compulsory measures shall not affect the normal operation of enterprises.
8. The administrative organ's inquiry about the financial account books, transaction records, business dealings and other matters of the enterprise shall not affect the normal production and business activities of the enterprise, and shall keep the business secrets of the enterprise.
9, seizure, seizure is limited to the places, facilities or property involved, shall not be seized, seizure has nothing to do with the illegal activities of places, facilities or property.
10, administrative compulsion does not exclude "reconciliation". Administrative coercion can reach an execution agreement, that is to say, administrative coercion does not exclude the draft of "execution reconciliation", which stipulates that when administrative coercion is implemented, the administrative organ can reach an execution reconciliation with the parties without harming the public interests and the interests of others.
1
1, administrative compulsory behavior In the case that the specific administrative act that causes the compulsory reason is initiated by the parties, the compulsory behavior should generally be suspended. However, it can be enforced for the needs of public interests and collective interests, and the person subjected to execution can file an administrative reconsideration, and the execution will not be stopped during the reconsideration period.
Administrative setup
Setting of administrative compulsion:
The right to create
Establishment of administrative compulsory measures
(1) Administrative coercive measures are set by law;
(2) If no law has been enacted and it falls within the administrative functions and powers of the State Council, administrative regulations may set other administrative compulsory measures except "restricting citizens' personal freedom, freezing deposits and remittances" and administrative compulsory measures that should be prescribed by law;
(3) If laws and administrative regulations have not been formulated and belong to local affairs, local regulations may set administrative compulsory measures of "sealing up places, facilities or property and seizing property";
(4) other normative documents (such as rules) other than "laws and regulations" shall not set administrative compulsory measures;
(5) Where the law stipulates the objects, conditions and types of administrative compulsory measures, administrative regulations and local regulations shall not expand the provisions.
(2) Formulation of procedures and evaluation
1. When drafting a draft law or regulation, the drafting unit shall listen to opinions through hearings, demonstration meetings and other forms, and explain the necessity, possible impact and situation of listening to and adopting opinions to the formulation organ.
Step 2 evaluate
(1) Setting organ: The administrative compulsion set by it shall be evaluated regularly, and inappropriate administrative compulsion shall be revised or abolished in time.
(2) Implementing organ: It is possible to assess the implementation of the established administrative compulsion and the necessity of its existence in time, and report its opinions to the establishing organ of the administrative compulsion.
(3) Citizens, legal persons or other organizations: "may" put forward opinions and suggestions on the establishment and implementation of administrative coercion to the "establishment and implementation organ of administrative coercion".
fundamental principle
The principle of legality of administrative coercion
(Mandatory statutory management principle)
The "establishment and implementation" of administrative compulsion shall conform to the statutory "authority, scope, conditions and procedures".
Moderation principle of administrative compulsion
(Rationality principle)
The establishment and implementation of administrative coercion should be appropriate and reasonable, and should conform to the principle of proportionality.
(1) "Setting" administrative compulsion should be appropriate.
When establishing administrative coercion, the makers of laws and regulations should be cautious and keep a balance between maintaining public order and protecting citizens' rights.
(2) The "implementation" of administrative compulsion should be appropriate.
(1) cannot be implemented.
(a) if the circumstances of the illegal act are obviously minor or have no obvious social harm, "administrative compulsory measures may not be taken";
(b) If there is no obvious social harm and the party concerned is really unable to execute it, the administrative organ will "no longer" execute it if it fails to resume execution after three years of suspension.
② The value of the sealed-up, distrained and frozen property shall be appropriate.
(1) To seal up or detain the premises, facilities or property involved, and not to seal up or detain the premises, facilities or property unrelated to the illegal act;
(two) shall not seal up or detain the necessities of life of individual citizens and their dependents;
(c) The amount of frozen deposits and remittances should be equivalent to the amount involved in the illegal act.
③ Choose appropriate coercive measures.
(1) When a party fails to perform an administrative decision according to law, it shall give priority to non-compulsory means;
(b) The administrative organ should give priority to indirect coercive means (substitute performance and execution of punishment), and only when the substitute performance and execution of punishment can not achieve the administrative purpose can direct enforcement be applied;
(c) A variety of coercive means can achieve administrative purposes, and the method that causes the least damage to the parties should be chosen, that is, it meets the requirements of the "proportionality principle".
The principle of combining education with compulsion
(1) If education can achieve the purpose of administration, it will no longer be compulsory.
(2) Remind in advance
(a) to urge before making an administrative compulsory decision, and to reason when implementing the administrative compulsory decision; Before the request or execution, as long as the parties are willing to perform automatically, they should immediately stop execution;
Before applying to the people's court for compulsory execution, the administrative organ shall urge the parties to fulfill their obligations.
(3) In the process of urging, once the party concerned is found to have intentionally evaded performance, it should be implemented immediately (education cannot be a loophole for maliciously evading punishment and sanctions).
The principle of prohibiting the use of administrative coercive power to seek benefits
(1) Do not use the sealed-up or distrained property;
(2) No storage fee shall be charged;
(3) two lines of revenue and expenditure;
(4) Reasonably determine the performance fee.
Principles of protecting litigant's litigation rights and legal relief rights.
(1) The right to make a statement and defend yourself.
Before making a decision against the parties, the opinions of the parties should be listened to.
(2) the right to apply for administrative reconsideration, bring an administrative lawsuit and apply for administrative compensation.
(1) the parties have no objection to the basic administrative decision, only think that administrative coercion is illegal, and file an administrative reconsideration or lawsuit on administrative coercion alone;
(2) If a party refuses to accept the basic administrative decision, it may file an administrative reconsideration or lawsuit against the basic administrative decision and administrative compulsory act;
(3) In view of the situation that "no application for reconsideration or lawsuit can be executed within the statutory time limit", because the relief period of the basic administrative decision has expired, the parties can only seek administrative compulsory relief;
(4) In view of the situation that "the party refuses to accept the basic administrative decision, and the court maintains the administrative decision or rejects the party's claim after filing a lawsuit", if the party enters the execution stage and files an administrative lawsuit against the execution decision, the court should focus on reviewing the legality of the execution itself.
(3) the right to apply for judicial compensation
(1) After the administrative organ applies to the people's court for compulsory execution, the court makes a ruling and executes it, without changing the basic administrative decision. If the judicial enforcement of the basic administrative decision is illegal and damages the legitimate rights and interests of the parties, the "administrative organ applying for execution" shall bear the main liability for compensation.
(2) Citizens, legal persons or other organizations have the right to claim compensation in accordance with the law if they are harmed by illegal acts of the people's courts or expand the scope of execution.
legal ground
Article 4 of the Administrative Enforcement Law of the People's Republic of China
Article 4 The establishment and implementation of administrative coercion shall be in accordance with the statutory authority, scope, conditions and procedures.
Article 5 of the Administrative Enforcement Law of the People's Republic of China
Article 5 The establishment and implementation of administrative coercion shall be appropriate. If non-coercive means can achieve the purpose of administrative management, administrative coercion shall not be set and implemented.
Article 6 of the Administrative Enforcement Law of the People's Republic of China
Article 6 The implementation of administrative coercion shall adhere to the combination of education and coercion.