论行政强制措施的变异——从行政强制措施的事实损害性特征切入

The illegal variation of administrative coercive measures

既然行政强制措施是对人身自由或财物的暂时性限制,那么它就对公民具有某种损害性,在实践中行政机关应当谨慎采取,在理论上也应该进一步厘清行政强制措施可能存在的违法变异形态。如果行政强制措施的采取违反了比例原则,则应认定为滥用职权;如果行政机关不积极取消行政强制措施,则应认定为行政不作为;如果行政机关故意拖延取消行政强制措施,则应认定为变相的行政处罚。

Administrative coercive measures are temporary restrictions on personal liberty or property,so they could have some damages to citizens.And the administrative authorities shall take them prudently.What is more,scholars should further analyze and clarify the possible forms of illegal variation of administrative coercive measures.If the administrative coercive measures are taken in violation of the principle of proportionality,they are considered as abuse of administrative power.If the executive authorities do not actively abolish administrative coercive measures,they are considered administrative omission.If the executive authorities dliberately delay the abolition of administrative coercive measures,they are considered disguised administrative penalties.