论我国城市管理综合行政执法体系的构建
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摘要
本文在对城市管理综合行政执法概念进行全面界定的基础上,结合国外相类似领域的城市管理经验,深入分析了我国城市管理过程中存在的问题。着重研究了我国城市管理综合执法体系构建的相关问题。为推进适应城市化发展进程需要的城市管理综合行政执法体系建设,首先要完善相关法律法规的创制工作,变“借法执法”为“依法执法”,突破单纯依靠《行政处罚法》的被动局面;其次,在行政部门设置和职责规定层面确立城市管理部门的主体资格,探索设立从中央到地方上下对应的独立城市管理系统、城市管理专业警察队伍;第三,进一步加强城市管理综合行政执法的作风和队伍建设,摒弃权力本位意识、树立服务理念,努力做到从行政相对人的特点出发,有针对性地实施执法活动。
In the State Council promulgated the regulations, which have both "the relative concentration of administrative punishment power" has "a comprehensive administrative and law enforcement," as a basis for the concept of local laws and regulations have also shown the use of chaotic situations. Integrated administrative law enforcement, refers to the administrative enforcement process, when the administrative matters of the administrative body vested by unknown or need to adjust the functions of the management of cross-state relations, the transfer of certain powers by the relevant agencies, and the formation of a new and independent legal status enforcement of the main body of the matters dealt with law enforcement activities. Thus, the concept of an integrated administrative and law enforcement should be much higher than the relative concentration of the right of administrative punishment should be much broader concept of extension. Accordingly, urban management should be included in comprehensive administrative law enforcement the right to administrative penalties, administrative enforcement investigative powers and executive power.
Developed countries, urban management system and our country has a great difference, but they are some of the specific approach is very worthy of us to learn from and draw on. On the one hand, laws and regulations related to urban management and a very sound and able to do a legal basis; the other hand, urban management, punishment is much higher than China's. Developed countries and regions through research, not difficult to find that they are not designed for urban management and law enforcement teams, involving matters of law enforcement on illegal natural persons, the general implementation by the police and given a strong follow-up of the implementation of safeguards. However, the order of the German Bureau and the police are connected, that is, have the right to administrative penalties, but also have the right to an administrative investigation. China's urban management and administration of law enforcement problems in the course include: neglect urban management processes of administrative law enforcement inside the procedural law construction, urban management, administrative and law enforcement process is simple and rude, ignore the urban management of daily administrative law enforcement team building, administrative punishment rather than publicity and education.
Integrated urban management in China the legal basis of administrative law enforcement is not yet perfect, China's urban management integrated administrative law enforcement there is no uniform national or local laws and regulations. The most direct legal basis for the only "PRC Administrative Punishment Law," the provisions of Article 16. China's urban management integrated administrative law enforcement is still in the "by law enforcement" state. In practice, an integrated urban management in China mainly through the executive of administrative law enforcement organs to transfer the functions of internal documents for urban management and law enforcement organizations to provide a comprehensive basis for law enforcement. Based on "Administrative Punishment Law" Article 16 of the authorization, urban management integrated administrative law enforcement a bit thin because the powers conferred by this provision only to the concentration of power of administrative penalty, but here is the administrative penalty is not necessarily the law set administrative penalty the right to administrative punishment, which it could be the next place the rules set by the broader administrative penalties. Also, an integrated urban management from the administrative law enforcement is after the implementation of this law is enacted.
Comprehensive Urban Management law enforcement of administrative law enforcement can reduce costs and improve efficiency of law enforcement. Future urban management integrated administrative enforcement of laws and regulations related to the development should include the following aspects. First, the nature: benefits of administrative consequences of the invasion, the comprehensive nature of the exercise of powers, the quasi-judicial enforcement procedures. Second, comprehensive:①a high degree of specialization of administrative law enforcement activities must be done by specialized departments, while others may be appropriately implemented a comprehensive administrative and law enforcement. Most of the urban management process administrative law enforcement degree of specialization is not high, suitable for comprehensive law enforcement.②belonging to the vertical management of the administrative law enforcement activities must be done by specialized departments belonging to the local management; you can use the comprehensive law enforcement administration. Urban management, administrative and law enforcement activities are local affairs, to undertake comprehensive law enforcement.③belong to a department can be assigned to the remaining part of the responsibilities of other departments so that its implementation of the comprehensive law enforcement administration. The residual responsibilities of other departments will be transferred to city management, facilitate the adoption of comprehensive law enforcement and enhance efficiency.
China's Administrative Organization Act only provides for the executive duties of the static requirements, does not require a dynamic approach to the division of responsibility between government agencies and cross-function approach. If there is no systematic scientific and rational administrative organization of the law division of the various functional departments of the authority, will inevitably lead to very large number of overlapping responsibilities. Accordingly, the Administrative Organization Act not only to establish a government administrative system in the static system, is more important is to establish a dynamic relationship between the government administrative system. At present, urban management problems mainly for the over-emphasis on the vertical closed, one-way single-minded management style, lack of horizontal linkages with each other, not fully play the role of various functional departments of the synergistic effect. Future independent integrated urban management responsibilities of the executive law enforcement agencies should include the following aspects:①to implement the relevant administrative law enforcement principles, policies, laws, regulations, rules and regulations;②organizing the implementation of the national urban areas of relatively concentrated administrative penalty trial work and integrated pilot project of administrative law enforcement;③Urban Management law enforcement work responsible for the national macro-coordination, guidance;④responsible for collecting, aggregating the work of the National Urban Management law enforcement;⑤responsible for drafting the relevant normative documents;⑥law enforcement organizations in a nationwide special rectification actions ;⑦undertake the work assigned by the Party Central Committee and the State Council.
At present, urban integrated administrative enforcement of the executive authority, including two aspects: the relative concentration of the right of administrative punishment, a small amount of administrative enforcement of the right. As an integrated urban management, administrative and law enforcement agencies have less administrative enforcement power, but in practice they must be based on the needs of law enforcement to take certain coercive measures in case of lack of legal basis for the relative who is apt to cause resistance. At present, the implementation of an integrated urban management, the linkage of administrative law enforcement mechanism, that an integrated urban management, administrative law enforcement officers and public security personnel of joint action. General to implement "special consultation" approach to urban management in an integrated administrative law enforcement departments are expected to be violent anti-law cases, the prior request to send officers to assist the public security organs, focusing on the fight against violence and resisting law enforcement. In some areas the "special consultation" approaches into a relatively stable operating mechanism. Effects from the operation of the city's point of view, the way the police with a certain extent, increased the authority of the comprehensive law enforcement to curb the violent resistance to law enforcement incident. However, this practice of the police with law enforcement is only a temporary way of collaboration. In a certain period, it is effective for the technical aspects to take such measures. The proposed use of the existing patrol institutional mechanism to integrate urban management integrated administrative law enforcement team, the establishment of an integrated urban management, administrative law enforcement professional police force. Not only solve the enforcement of the law difficult problem of natural persons, but also to solve the existing problem of insufficient police presence, taking into accounts the social security problem.
Strengthen the administrative enforcement of China's urban management, integrated service system building, and should focus on the following three aspects: first, get rid of power-oriented awareness, establish a service concept; second, administrative counterpart of the characteristics of the targeted implementation of the law enforcement activities; third ,efforts to improve the professional ethics standards and establish a good image of law enforcement.
In the State Council promulgated the regulations, which have both "the relative concentration of administrative punishment power" has "a comprehensive administrative and law enforcement," as a basis for the concept of local laws and regulations have also shown the use of chaotic situations. Integrated administrative law enforcement, refers to the administrative enforcement process, when the administrative matters of the administrative body vested by unknown or need to adjust the functions of the management of cross-state relations, the transfer of certain powers by the relevant agencies, and the formation of a new and independent legal status enforcement of the main body of the matters dealt with law enforcement activities. Thus, the concept of an integrated administrative and law enforcement should be much higher than the relative concentration of the right of administrative punishment should be much broader concept of extension. Accordingly, urban management should be included in comprehensive administrative law enforcement the right to administrative penalties, administrative enforcement investigative powers and executive power.
Developed countries, urban management system and our country has a great difference, but they are some of the specific approach is very worthy of us to learn from and draw on. On the one hand, laws and regulations related to urban management and a very sound and able to do a legal basis; the other hand, urban management, punishment is much higher than China's. Developed countries and regions through research, not difficult to find that they are not designed for urban management and law enforcement teams, involving matters of law enforcement on illegal natural persons, the general implementation by the police and given a strong follow-up of the implementation of safeguards. However, the order of the German Bureau and the police are connected, that is, have the right to administrative penalties, but also have the right to an administrative investigation. China's urban management and administration of law enforcement problems in the course include: neglect urban management processes of administrative law enforcement inside the procedural law construction, urban management, administrative and law enforcement process is simple and rude, ignore the urban management of daily administrative law enforcement team building, administrative punishment rather than publicity and education.
Integrated urban management in China the legal basis of administrative law enforcement is not yet perfect, China's urban management integrated administrative law enforcement there is no uniform national or local laws and regulations. The most direct legal basis for the only "PRC Administrative Punishment Law," the provisions of Article 16. China's urban management integrated administrative law enforcement is still in the "by law enforcement" state. In practice, an integrated urban management in China mainly through the executive of administrative law enforcement organs to transfer the functions of internal documents for urban management and law enforcement organizations to provide a comprehensive basis for law enforcement. Based on "Administrative Punishment Law" Article 16 of the authorization, urban management integrated administrative law enforcement a bit thin because the powers conferred by this provision only to the concentration of power of administrative penalty, but here is the administrative penalty is not necessarily the law set administrative penalty the right to administrative punishment, which it could be the next place the rules set by the broader administrative penalties. Also, an integrated urban management from the administrative law enforcement is after the implementation of this law is enacted.
Comprehensive Urban Management law enforcement of administrative law enforcement can reduce costs and improve efficiency of law enforcement. Future urban management integrated administrative enforcement of laws and regulations related to the development should include the following aspects. First, the nature: benefits of administrative consequences of the invasion, the comprehensive nature of the exercise of powers, the quasi-judicial enforcement procedures. Second, comprehensive:①a high degree of specialization of administrative law enforcement activities must be done by specialized departments, while others may be appropriately implemented a comprehensive administrative and law enforcement. Most of the urban management process administrative law enforcement degree of specialization is not high, suitable for comprehensive law enforcement.②belonging to the vertical management of the administrative law enforcement activities must be done by specialized departments belonging to the local management; you can use the comprehensive law enforcement administration. Urban management, administrative and law enforcement activities are local affairs, to undertake comprehensive law enforcement.③belong to a department can be assigned to the remaining part of the responsibilities of other departments so that its implementation of the comprehensive law enforcement administration. The residual responsibilities of other departments will be transferred to city management, facilitate the adoption of comprehensive law enforcement and enhance efficiency.
China's Administrative Organization Act only provides for the executive duties of the static requirements, does not require a dynamic approach to the division of responsibility between government agencies and cross-function approach. If there is no systematic scientific and rational administrative organization of the law division of the various functional departments of the authority, will inevitably lead to very large number of overlapping responsibilities. Accordingly, the Administrative Organization Act not only to establish a government administrative system in the static system, is more important is to establish a dynamic relationship between the government administrative system. At present, urban management problems mainly for the over-emphasis on the vertical closed, one-way single-minded management style, lack of horizontal linkages with each other, not fully play the role of various functional departments of the synergistic effect. Future independent integrated urban management responsibilities of the executive law enforcement agencies should include the following aspects:①to implement the relevant administrative law enforcement principles, policies, laws, regulations, rules and regulations;②organizing the implementation of the national urban areas of relatively concentrated administrative penalty trial work and integrated pilot project of administrative law enforcement;③Urban Management law enforcement work responsible for the national macro-coordination, guidance;④responsible for collecting, aggregating the work of the National Urban Management law enforcement;⑤responsible for drafting the relevant normative documents;⑥law enforcement organizations in a nationwide special rectification actions ;⑦undertake the work assigned by the Party Central Committee and the State Council.
At present, urban integrated administrative enforcement of the executive authority, including two aspects: the relative concentration of the right of administrative punishment, a small amount of administrative enforcement of the right. As an integrated urban management, administrative and law enforcement agencies have less administrative enforcement power, but in practice they must be based on the needs of law enforcement to take certain coercive measures in case of lack of legal basis for the relative who is apt to cause resistance. At present, the implementation of an integrated urban management, the linkage of administrative law enforcement mechanism, that an integrated urban management, administrative law enforcement officers and public security personnel of joint action. General to implement "special consultation" approach to urban management in an integrated administrative law enforcement departments are expected to be violent anti-law cases, the prior request to send officers to assist the public security organs, focusing on the fight against violence and resisting law enforcement. In some areas the "special consultation" approaches into a relatively stable operating mechanism. Effects from the operation of the city's point of view, the way the police with a certain extent, increased the authority of the comprehensive law enforcement to curb the violent resistance to law enforcement incident. However, this practice of the police with law enforcement is only a temporary way of collaboration. In a certain period, it is effective for the technical aspects to take such measures. The proposed use of the existing patrol institutional mechanism to integrate urban management integrated administrative law enforcement team, the establishment of an integrated urban management, administrative law enforcement professional police force. Not only solve the enforcement of the law difficult problem of natural persons, but also to solve the existing problem of insufficient police presence, taking into accounts the social security problem.
Strengthen the administrative enforcement of China's urban management, integrated service system building, and should focus on the following three aspects: first, get rid of power-oriented awareness, establish a service concept; second, administrative counterpart of the characteristics of the targeted implementation of the law enforcement activities; third ,efforts to improve the professional ethics standards and establish a good image of law enforcement.
引文
1.关保英著:《执法与处罚的行政权重构》,法律出版社2004年版,第17页。
2.青锋著:《行政执法体制改革的图景与理论分析》,载《上海政法学院学报》2007年第1期,第82页。
3.姜明安主编:《行政法与行政诉讼法》(第二版),高等教育出版社、北京大学出版社2005年版,第257页。
4.曹康泰:《积极推进相对集中行政处罚权工作不断改革、完善现行行政执法体制》,载《相对集中行政处罚权工作读本》,中国法制出版社2003年版,第53页。
5.参见青锋:《行政执法体制改革的图景与理论分析》,载《上海政法学院学报》2007年第2期,第84页。
6.肖金明:《行政处罚制度研究》,山东大学出版社2004年版,第95页。
7.《相对集中行政处罚权工作读本》,中国法制出版社2003年版,第37-38页。
8.参见[日]盐野宏著:《行政法》,杨建顺译,法律出版社1999年版,第191页。
9.《邓小平文选》(第三卷),人民出版社1993年版。
10.刘海年等编:《依法治国,建立社会主义法治国家》,中国法治出版社1996年版。
11.王人博等著:《法治论》,山东人民出版社1998年版。
1.王续琨等著:《中国城市行政系统建设与改革》,大连理工大学出版社1998年12月版。
2.林烈发、张承奎主编:《新编行政管理学》,暨南大学出版社1999年12月版。
3.蔡小慎主编:《公共行政管理学》,大连理工大学出版社2002年12月版。
1.丁伟、覃旭:《城管执法体制改革之变》,《中国建设信息》2003年第10期。
2.周奋进:《为城市管理立法,破解城市管理执法难》,《云南行政学院学报》2008年第12期。
3.陈应珍:《试论行政执法方式的创新及其保障》,《江南大学学报》(人文社会科学版)2008年第12期。
4.姚来燕:《行政执法与公民权利保障》,《云南行政学院学报》2008年第7期。
5.宋华琳:《基层行政执法裁量权研究》,《清华法学》2009年5期。
6.青锋:《关于深化行政执法体制改革的几点思考》,《行政法学研究》2006年第11期。
7.杨建顺:《论构建和谐社会中城管执法的作用》,《法学家》2006年第4期。
1.刘春禾:《城市管理综合行政执法体制研究》,中央民族大学2007年硕士学位论文。
2.王姝:《城市管理行政执法体制构建研究》,广西民族大学2008年硕士学位论文。
3.冷雪松:《长春市城市管理行政执法问题与对策研究》,吉林大学2008年硕士学位论文。
4.张长宝:《我国城市管理行政执法现状及对策分析》,吉林大学2005年硕士学位论文。
5.陈智广:《城市管理中行政执法的困境与对策》,湘潭大学2008年硕士学位论文。
6.鲍华:《城市管理执法体制研究》,复旦大学2008年硕士学位论文。
7.邹瑞彬:《行政法视野下城市综合执法问题研究》,江西师范大学2008年硕士学位论文。
2.青锋著:《行政执法体制改革的图景与理论分析》,载《上海政法学院学报》2007年第1期,第82页。
3.姜明安主编:《行政法与行政诉讼法》(第二版),高等教育出版社、北京大学出版社2005年版,第257页。
4.曹康泰:《积极推进相对集中行政处罚权工作不断改革、完善现行行政执法体制》,载《相对集中行政处罚权工作读本》,中国法制出版社2003年版,第53页。
5.参见青锋:《行政执法体制改革的图景与理论分析》,载《上海政法学院学报》2007年第2期,第84页。
6.肖金明:《行政处罚制度研究》,山东大学出版社2004年版,第95页。
7.《相对集中行政处罚权工作读本》,中国法制出版社2003年版,第37-38页。
8.参见[日]盐野宏著:《行政法》,杨建顺译,法律出版社1999年版,第191页。
9.《邓小平文选》(第三卷),人民出版社1993年版。
10.刘海年等编:《依法治国,建立社会主义法治国家》,中国法治出版社1996年版。
11.王人博等著:《法治论》,山东人民出版社1998年版。
1.王续琨等著:《中国城市行政系统建设与改革》,大连理工大学出版社1998年12月版。
2.林烈发、张承奎主编:《新编行政管理学》,暨南大学出版社1999年12月版。
3.蔡小慎主编:《公共行政管理学》,大连理工大学出版社2002年12月版。
1.丁伟、覃旭:《城管执法体制改革之变》,《中国建设信息》2003年第10期。
2.周奋进:《为城市管理立法,破解城市管理执法难》,《云南行政学院学报》2008年第12期。
3.陈应珍:《试论行政执法方式的创新及其保障》,《江南大学学报》(人文社会科学版)2008年第12期。
4.姚来燕:《行政执法与公民权利保障》,《云南行政学院学报》2008年第7期。
5.宋华琳:《基层行政执法裁量权研究》,《清华法学》2009年5期。
6.青锋:《关于深化行政执法体制改革的几点思考》,《行政法学研究》2006年第11期。
7.杨建顺:《论构建和谐社会中城管执法的作用》,《法学家》2006年第4期。
1.刘春禾:《城市管理综合行政执法体制研究》,中央民族大学2007年硕士学位论文。
2.王姝:《城市管理行政执法体制构建研究》,广西民族大学2008年硕士学位论文。
3.冷雪松:《长春市城市管理行政执法问题与对策研究》,吉林大学2008年硕士学位论文。
4.张长宝:《我国城市管理行政执法现状及对策分析》,吉林大学2005年硕士学位论文。
5.陈智广:《城市管理中行政执法的困境与对策》,湘潭大学2008年硕士学位论文。
6.鲍华:《城市管理执法体制研究》,复旦大学2008年硕士学位论文。
7.邹瑞彬:《行政法视野下城市综合执法问题研究》,江西师范大学2008年硕士学位论文。