行政拘留适用听证程序研究

Study on the Procedure of Hearing Applicable to Administrative Detention

法律未将行政拘留纳入听证程序,其原因可能是基于听证引发的行政效率降低以及其他相关因素。相对于听证制度,暂缓执行制度存在着公权力仍处于优势地位等劣势。从行政拘留对相对人权益的处分等角度来看,应当将行政拘留纳入听证程序。同时,应当考虑到将行政拘留纳入听证程序存在着被处罚人的人身自由如何控制的现实困难,对此可借鉴暂缓执行制度的合理之处,通过修改相关立法的方式予以解决。

In essence,the administrative detention is a temporary restriction on the personal freedom of citizens who violate the law by the public security organs which on behalf of the public power of the state.However,based on some reasons,such as the administrative efficiency might be dropped,neither the Law on Administrative Penalties nor the Law on Administrative Penalties for Public Security included them in the scope of the hearing procedure.Compared to the hearing system,the following deficiencies exist in the system of deferred execution,such as the public power is still in the ascendant.From some aspects,such as the point of administrative detention act on the administrative relative's rights,the administrative detention should be included in the hearing procedure.At the same time,it should be taken into account that how to control the freedom of the person who break the law.It can be sovled by absorbing the reasonable aspects of the system of deferred execution,and then modify the laws which are connectted.