Types of administrative law enforcement

The specific method of administrative coercion is also called the form of administrative coercion, or specific measures. Because administrative coercion directly involves citizens' personal rights and property rights, the coercive methods that administrative organs can adopt must be clearly stipulated by laws and regulations, and cannot be decided by administrative organs themselves. According to the provisions of Chinese laws and regulations, the ways and legal basis of administrative coercion are roughly as follows:

(1) Personal Enforcement Law-exclusive to public security organs.

1. Compulsory detention. Article 103 of the Law on Public Security Administration Punishment stipulates: "The person who decides to give administrative detention punishment shall be sent to the detention center for execution by the public security organ that made the decision."

2. Strong uniform military service. Article 6 1 of the Military Service Law: "If a citizen who has the obligation to perform military service commits one of the following acts, the people's government at the county level shall order him to make corrections within a time limit; Those who fail to perform within the time limit shall be forced by the people's government at the county level to perform their military service obligations and may be fined. " Some scholars believe that compulsory military service belongs to the compulsion of behavior.

3. Compulsory summons. Paragraph 2 of Article 82 of the Law on Public Security Administration Punishment stipulates: "The public security organ shall inform the summoned person of the reasons and basis. If you refuse to accept the summons or evade the summons without justifiable reasons, you can force the summons. "

4. Forced to leave the scene. There are three laws enforced by public security organs. First, Article 8 of the People's Police Law stipulates that "the people's police of public security organs may forcibly take away people who seriously endanger public order or threaten public safety, detain them according to law or take other measures prescribed by law." Article 17 stipulates: "The public security organ of the people's government at or above the county level may, according to the situation and with the approval of the public security organ at a higher level and the people's government at the same level, implement on-site control over emergencies that seriously endanger public order.

The people's police of the public security organ may, in accordance with the provisions of the preceding paragraph, take necessary measures to forcibly disperse, and forcibly take those who refuse to obey away from the scene or immediately detain them. "

Article 24 of the Law on Public Security Administration Punishment: "Anyone who commits one of the following acts and disturbs the order of large-scale mass activities such as culture and sports shall be given a warning or fined not more than 200 yuan; If the circumstances are serious, they shall be detained for more than five days and less than ten days, and may be fined up to five hundred yuan:

(1) forcibly entering the meeting place;

(two) in violation of regulations, fireworks or other items in the venue;

(three) display insulting slogans, banners and other items;

(4) Besieging referees, athletes or other staff members;

(five) throwing debris into the venue, not listening to stop;

(six) other acts that disrupt the order of large-scale mass activities.

Those who are detained and punished for disturbing the order of sports competitions may also be ordered not to enter sports venues to watch similar competitions within 12 months; Those who enter the stadium illegally are forcibly taken away from the scene. "

(2) the method of enforcing property

1. Forced transfer. It refers to a compulsory way for the executing agency to notify the debtor who fails to perform his obligations within the time limit to transfer his payable funds from his account. If the tax authorities notify taxpayers to transfer the corresponding tax to the bank and transfer the tax payable from their accounts. The administrative department for industry and commerce also has this kind of enforcement power, such as Article 32 of the Regulations on the Administration of Registration of Enterprise Legal Persons: "If an enterprise legal person refuses to accept the punishment of the registration authority, it may apply to the registration authority at the next higher level for reconsideration within 15 days from the date of receiving the notice of punishment. The superior registration authority shall make a reconsideration decision within 30 days from the date of receiving the application for reconsideration. If the applicant refuses to accept the reconsideration decision, he may bring a lawsuit to the people's court within 30 days from the date of receiving the notice of reconsideration. If a complaint is not made or a fine is not paid within the time limit, the registration authority may notify the bank where the account is opened to allocate funds according to the prescribed procedures. " Finance (People's Bank), auditing and financial institutions also have the right to forcibly transfer deposits.

2. Compulsory payment. It refers to a kind of compulsory execution method in which the executing organ sells the property of the detained obligor and pays the due money to achieve the same state as fulfilling the obligation. For example, Article 93 of the Customs Law stipulates: "If a party fails to perform the customs penalty decision within the time limit, and neither applies for reconsideration nor brings a suit in a people's court, the customs that made the penalty decision may offset his deposit or his detained goods, articles and means of transport according to law, or apply to the people's court for compulsory execution."

3. Compulsory auction or sale. Article 40 of the Law on the Administration of Tax Collection stipulates: "Taxpayers and withholding agents engaged in production and business operations fail to pay or remit taxes within the prescribed time limit, and tax payment guarantors fail to pay the guaranteed taxes within the prescribed time limit, and the tax authorities shall order them to pay within the prescribed time limit. If it fails to pay within the time limit, the tax authorities may take the following compulsory measures with the approval of the director of the tax bureau (sub-bureau) at or above the county level: (1) notify its banks or other financial institutions in writing to withhold tax from their deposits. (2) To seal up, detain, auction or sell commodities, goods or other property whose value is equivalent to the tax payable according to law, and use the proceeds from auction or sale to offset the tax ". Auction shall be conducted in accordance with the procedures stipulated in the auction law.

4. Forced demolition. Also divided into forced demolition of houses and forced demolition of illegal buildings. The former refers to Article 17 of the Regulations on the Management of Urban House Demolition, which stipulates that "if the demolished person or lessee fails to move within the relocation period stipulated in the ruling, the people's government of the city or county where the house is located shall instruct the relevant departments to forcibly remove it, or the house demolition management department shall apply to the people's court for compulsory removal according to law."

The latter refers to the administrative organ ordering the owners or users of illegal buildings or buildings occupying illegal land to dismantle illegal buildings within a time limit. If it fails to perform within the time limit, it shall be removed by the executing organ through legal procedures. Mainly refers to Article 68 of the Urban and Rural Planning Law, which came into effect on June 5438+ 10/2008. "After the competent department of urban and rural planning makes a decision to stop construction or dismantle it within a time limit, if the parties fail to stop construction or dismantle it within a time limit, the local people's government at or above the county level where the construction project is located may instruct the relevant departments to take measures such as sealing up the construction site and compulsory demolition."

(3) the method of implementing behavior

1. Compulsory license. Article 48 of the Patent Law (revised in 2008): "Under any of the following circumstances, the patent administrative department of the State Council may grant a compulsory license to exploit the invention patent or utility model patent upon the application of a unit or individual with the conditions for implementation: (1) The patentee has not exploited or fully exploited his patent for three years from the date of granting the patent right, and for four years from the date of patent application, without justifiable reasons; (2) The patentee's act of exercising the patent right is recognized as a monopolistic act according to law, so as to eliminate or reduce the adverse impact of the act on competition. "

2. Mandatory verification. Article 9 of the Metrology Law stipulates: "The metrological administrative department of the people's government at or above the county level shall carry out compulsory verification of the public standard measuring instruments, the highest standard measuring instruments used by departments, enterprises and institutions, and the working measuring instruments listed in the compulsory verification catalogue of trade settlement, safety protection, medical and health care and environmental monitoring."

3. Compulsory redemption. The State Administration of Foreign Exchange has the right to purchase foreign exchange compulsorily. Articles 45 and 46 of the Regulations on Foreign Exchange Control stipulate the enforcement means of compulsory purchase of foreign exchange. For example, Article 46 stipulates: "Anyone who buys or sells foreign exchange privately, in disguised form, or resells foreign exchange shall be given a warning, his illegal income shall be confiscated, and a fine of more than 30% and less than three times the amount of illegal foreign exchange shall be imposed; If it constitutes a crime, criminal responsibility shall be investigated according to law. "