行政强制措施的内涵及边界

Connotation and Boundary of Administrative Coercive Measures

为达到维权和限权的平衡,法治国家需要对行政强制措施进行严格定义,但我国对其认定存在长期争议,主要争点在与行政强制执行的关系上。出现了一致说、包含说、分离说或二行为说、行政强制说等代表性观点。《行政强制措施法》虽然在立法上明确了行政强制措施的概念,但认定标准不够清晰。理论上通过罗列其法律特性及运用排除法等方式,难以将认定标准具体化,应当从行为的保障性临时性性质、行政义务不作为的内容上理清其与行政强制执行的关系,并将其与行政处罚、行政决定、行政救助等作区分,从而认清其预防性、非惩罚性、强制性、暂时性及限权性的特点,以进一步深化内涵,明确边界。

In order to achieve the balance of right and power,it requires a strict definition of administrative coercive measures in a country under the rule of law. But there are some disputes about the relationship between administrative coercive measures and administrative enforcement in China,such as the theory of consistent. Although the concept of administrative coercive measures is clearly defined in legislation,the identification standard is not clear enough. It is difficult for people to make the identifying standards specific. The relationship between them should be made clear from the temporary and security nature of the act,and the content of the obligation of omission. Distinction between the administrative punishment,administrative decision and the administrative assistance should be made clear to better understand the preventive,non punitive,mandatory,temporary and power limited,and further to deepen the connotation of the administrative coercive measures and the boundaries.