Section II Administrative Action
First, the concept of administrative action
Administrative action refers to the administrative body in the implementation of administrative activities, exercise acts of legal significance of administrative powers in the process of being made. The basic characteristics of administrative acts are: (1) administrative action must be the administrative body to act; (2) the exercise of administrative powers of administrative behavior is behavior.
[Zhenti] of the following example, an administrative act is ().
A. B. B police station summoned citizens to the Inland Revenue Department to buy public housing real estate company
C. Public Security Bureau commissioned the printing plant printed document D. Fire Department issued a fire hazard rectification notice to a company
[Resolve] the correct answer to this question AD. Administrative act is the administrative body made ex officio, the impact of the Legitimate Rights and Interests of behavior. Candidates must pay attention to administrative actions related to the functions and powers of the administrative body, B items purchased public housing, C commissioned items are printed documents regardless of the terms of reference and a civil behavior, it is excluded.
Second, the abstract administrative act
Abstract administrative act is also known as "administrative legislative act", is symmetrical specific administrative act, its object is universal. From a static sense, it refers to a universally binding rules of conduct state administration worked out for unspecified people and things, including administrative regulations, administrative rules and regulations, generally binding decisions, orders and so on.
Abstract administrative act has the following characteristics:
1. The universality of the object. That is universal, not a specific person or thing is the behavior of the object, which is aimed at a certain type of people or things, rather than a specific person or thing.
2. The effectiveness of the universality and continuity. That abstract administrative act has a certain category of people or things binding, and while the force, applies not only to the time of the act or event, but also for similar acts or events occurring in the future.
3. quasi-legislative nature.
4. Do not actionable.
Third, the specific administrative act
Specific administrative act, refers to the state executive and executive staff, laws and regulations authorized by the organization, commissioned by the executive organ of the organization, or individual exercise of administrative powers in administrative activities, for specific citizens, legal persons or other organizations, on specific specific issues to make unilateral acts related to the rights and obligations of citizens, legal persons or other organizations. In short, the specific administrative act, means the exercise of executive powers of the executive, unilateral acts related to the rights and obligations of a particular make of citizens, legal persons and other organizations.
(A) administrative penalties
Administrative penalties, refers to discipline the behavior of the statutory administrative body for violation of administrative laws and regulations, administrative undermine the legal order but not yet constitute a crime of citizens, legal persons or other organizations implemented.
1. The administrative penalty and setting the type
(1) warning. Also known as the spirit of the penalty, the lightest punishment is an administrative punishment, the administrative body refers to condemn and warn the violator in writing to one made generally applicable to illegal slight, little risk behavior, having both educational nature but also the nature of sanctions. Warning applies to both natural persons, but also for legal persons or other organizations.
(2) fine. Property penalty, the administrative body is allowed to refer the violator to make some form of punishment assume the obligation to pay the money. Different from the fine penalty. Penalty is an administrative punishment, and the punishment is a fine, based on the provisions of the criminal law.
(3) confiscated. Property penalties, including forfeiture and confiscation of illegal income confiscated illegal property refers to the form of administrative punishment for violations subject be deprived of his property, mainly for violations held by the illegal proceeds of illegal activities and implementation tools, etc., forced to close without compensation there shall be returned or destroyed property penalty.
(4) ordered to cease. Ordered to cease a temporary restrictions on illegal human capacity refers to the administrative body to suspend mandatory penalties for illegal production or business person, usually accompanied by a deadline for rectification. If the person punished to correct violations within the time limit, it can resume production, sales.
(5) temporary suspension or revocation of permits, licenses. The ability to conduct penalty or punishment, refers to the administrative body of the perpetrator of the violation of administrative law by revoking the right to temporarily or qualifications or credentials that it has acquired the right to limit or deprive its concession to engage in an activity. Temporarily suspend the violator's just some kind of concession rights or qualifications, after the violator to correct their behavior or detention period should be returned permits, licenses, restore its concession rights or qualifications; and revocation of permits or licenses it means that the termination or cancellation of some people to be punished right or entitlement.
(6) administrative detention. Personal freedom penalty, administrative detention is an administrative penalty in the most severe form of punishment, it refers to the administrative body to act in violation of administrative law form of punishment deprived of personal liberty in the short term. Only the public security organs have the right to decide and execute, and must be summoned and asked, forensics, ruling, execution procedures.
(7) legal, administrative regulations other administrative penalties.
2. The administrative penalties set
(1) law. The law may set a variety of administrative penalties.
(2) administrative regulations. Administrative regulations can be set administrative penalties in addition to restriction of personal freedom.
(3) local regulations. Administrative penalties may be local regulations in addition to restriction of personal freedom, other than revocation of business license.
(4) various ministries, commissions established by regulations. Ministries regulations for violations of administration order, warning or a fine of a certain amount of administrative penalties.
(5) provinces, autonomous regions, municipalities and provincial, autonomous regional people's government seat of the Municipal People's Government and the State Council approved the development of a large municipal government regulations. Local government regulations for violations of administration order, warning or a fine of a certain amount of administrative penalties.
3. The implementation of the administrative penalty authority, jurisdiction and applicable
(1) implementation of the administrative penalty authority
Under "Administrative Punishment Law," the implementation of the administrative penalty authority in our country, including the executive, legislative, and regulatory organization authorized by the organization entrusted.
Jurisdiction (2) administrative punishment
The jurisdiction of administrative punishment, administrative penalty authority means between enforcement organization administrative penalty administrative violation cases division of labor. Jurisdiction include:
① territorial jurisdiction. Administrative penalties by the offense occurred jurisdiction of administrative organs that have the power of administrative punishment. Except as otherwise provided by laws and regulations.
② level jurisdiction. Executive administrative punishment by the local people's governments above the county level have the power of administrative penalty jurisdiction. Except as otherwise provided by laws and regulations.
③ designated jurisdiction. Dispute over jurisdiction and report on a common administrative authority designated jurisdiction.
Applicable (3) administrative penalties
① not the case punishment. a. offense is minor and promptly corrected, causing no harmful consequences, no administrative punishment. b. the age of 14 who commits an illegal act, no administrative penalty guardian is to be ordered to discipline. c. mental patient who commits a violation when unable to recognize or control his own conduct, no administrative penalty, but his guardian shall be ordered strict custody and treatment.
② lighter or mitigated punishment situation. . A should be given a lighter or mitigated punishment according to the law of the case: the party initiative to eliminate or mitigate the harmful consequences of the offense; coerced by another to commit the illegal act; with administrative organs to investigate illegal acts have rendered meritorious service; the other a lighter or mitigated administrative punishment of. b. the full 14 years of age under 18 years of age who commits an illegal act, a lighter or mitigated administrative penalty. c. intermittent mental patient when there are violations in a normal mental state, should be given administrative punishment.
③ punishment no longer. For an act, any organ may make the same kind of punishment to the same subject.
④ statute of limitations. Undetected violations in two years, will not be given except as otherwise provided administrative penalties, legal. 2-year period from the date of the occurrence of the violation; violations of continuity or state, from the date of the end of the act.
[Zhenti] Examples of administrative acts of the administrative body, whether legal or illegal, are presumed to be valid and require all agencies, organizations or individuals to be respected, which is mainly administrative acts () expression.
A. B. Execution determine force
C. Public Force binding D.
[Resolve] this question the correct answer is C. The presumptive legality of administrative acts, refers to the administrative act of an administrative body to make, whether legal or illegal, are presumed to be valid, relevant parties should first be respected and obeyed. So C option is correct.
[Zhenti] Examples of administrative penalties penalties penalties authorities strictly enforce the principle of separation pay, fines must not collect fines themselves. ()
[A] error. Article 46 "Administrative Punishment Law" stipulates: "The penalty decision made by the executive branch should be separated from the organ that collects the fine addition to the fine in accordance with the provisions of Article 47, Article 48 of this Law confiscated on the spot, to make administrative. administrative organ or its law enforcement officers penalty decision shall collect fines themselves. parties shall receive administrative punishment decision within 15 days to pay the fine at a designated bank. the banks shall accept the fines and directly to the state treasury. " Article 47 and 48 of the Act specifies the circumstances administrative organs and their law enforcement officers to make administrative decision may collect fines on the spot. The title of the statement too absolute, there are special circumstances.
Public Force refers to the administrative act, once set up, whether or not legitimate, that have a legal effect is presumed to be lawful and require all agencies, organizations, individuals to be respected. Public Force is the force of law a presumption or assumed. Administrative act is illegal because revoke or change the relevant authorities before, is presumed to be legitimate, ask the public to be respected. Public Force is relative, in a major or significant violations of the law, the administrative action that is not valid from the time made. [1]