當(dāng)代中國行政取締的法律治理
發(fā)布時間：2019-05-23 18:42
【摘要】：強(qiáng)制執(zhí)行力是行政取締在實(shí)證中呈現(xiàn)的最重要顯性特征之一,對其正當(dāng)性的解讀有助于從法理上厘清取締的內(nèi)部權(quán)力構(gòu)造,即存在對行政機(jī)關(guān)的實(shí)質(zhì)性"包裹授權(quán)",包括授權(quán)做出行政禁令及禁令之即時強(qiáng)制執(zhí)行,二者共同詮釋了取締非制裁性、終局性和實(shí)效性等權(quán)力特性,非僅為執(zhí)法目的的宣示。此為我國取締的法律治理指明了路向。基于新時期"管理與預(yù)防、控制"等"管控"價值的需求,取締作為聚合了意思行為和實(shí)力行為而"處執(zhí)合一"的綜合執(zhí)法行為仍然有其生命力和存在正當(dāng)性,應(yīng)該在法治引領(lǐng)和規(guī)范作用下對取締的規(guī)范設(shè)定、規(guī)范清理與適用,以及其與《行政強(qiáng)制法》程序沖突的解決等問題做出清晰的處理和釋解。通過法律治理有效回應(yīng)取締執(zhí)法中的諸多困局和廢除取締的論說,并建議把取締作為一個嚴(yán)格的法律概念使用,避免生活中的濫用和法律意義虛化。
[Abstract]:Enforcement power is one of the most important explicit characteristics of administrative ban in empirical evidence. The interpretation of its legitimacy is helpful to clarify the internal power structure of prohibition from a legal point of view, that is, the existence of substantive "package authorization" to administrative organs. Including authorizing the administrative ban and the immediate enforcement of the injunction, both of which interpret the power characteristics such as the prohibition of non-prescriptive, final and effective, and not only for the purpose of law enforcement. This points out the way for the legal governance banned in our country. Based on the demand of "management and prevention, control" and other "control" values in the new period, banning the comprehensive law enforcement behavior, which aggregates the behavior of meaning and strength, still has its vitality and legitimacy. Under the guidance and standardization of the rule of law, we should make a clear treatment and interpretation of the establishment of the ban norms, the cleaning and application of the norms, and the solution of the procedural conflict between the administrative jus cogens and the administrative jus cogens. Through legal governance, we should effectively respond to many difficulties in banning law enforcement and abolish the theory of abolishing ban, and suggest that ban should be used as a strict legal concept to avoid abuse and falsification of legal significance in life.
【作者單位】： 天津師范大學(xué)法學(xué)院;
【分類號】：D922.1
，
本文編號：2484132
[Abstract]:Enforcement power is one of the most important explicit characteristics of administrative ban in empirical evidence. The interpretation of its legitimacy is helpful to clarify the internal power structure of prohibition from a legal point of view, that is, the existence of substantive "package authorization" to administrative organs. Including authorizing the administrative ban and the immediate enforcement of the injunction, both of which interpret the power characteristics such as the prohibition of non-prescriptive, final and effective, and not only for the purpose of law enforcement. This points out the way for the legal governance banned in our country. Based on the demand of "management and prevention, control" and other "control" values in the new period, banning the comprehensive law enforcement behavior, which aggregates the behavior of meaning and strength, still has its vitality and legitimacy. Under the guidance and standardization of the rule of law, we should make a clear treatment and interpretation of the establishment of the ban norms, the cleaning and application of the norms, and the solution of the procedural conflict between the administrative jus cogens and the administrative jus cogens. Through legal governance, we should effectively respond to many difficulties in banning law enforcement and abolish the theory of abolishing ban, and suggest that ban should be used as a strict legal concept to avoid abuse and falsification of legal significance in life.
【作者單位】： 天津師范大學(xué)法學(xué)院;
【分類號】：D922.1
，
本文編號：2484132
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