我国行政法上的强制执行:行为、定性及立法归属——兼论《行政强制法》或《行政程序法》与《行政诉讼法》对现行行政强制执行行为在调整范围上的划分

The Coercive Execution in the Administrative Law of China: Acts,Determination and Legislative Attribution——and on the Division of the Acts of Existing Coercive Execution with respect to the Scope Made by Administrative Coercion Law or Administra

以我国行政法规范和行政诉讼法为依据 ,可归结出现行行政法上的八种强制执行行为。这些执行行为所构成的执行制度显有繁杂、零乱、遗漏、矛盾之缺陷 ,而且出现了主体、行为、程序之间的不协调性 ,存有行政强制执行由司法机关实施 ,司法强制执行由行政机关实施之“错位”现象。行政强制执行是对具体行政行为的执行 ,应当由行政机关通过行政程序实施 ;司法强制执行是对司法裁判的执行 ,应当由人民法院通过司法程序实施。根据这一理想规则 ,应对各种执行行为进行改造和重新定位 ,并把其纳入行政程序法或行政诉讼法所调整的不同范围 。

In the light of the norms in the administrative laws of China and the administrative litigation law,it can be concluded that there are eight kinds of coercive execution acts in administrative law.The execution institution composed of these execution acts has some defects such as being miscellaneous,disorderly,omitting,and conflictive.Furthermore,there appeared the inconsistency in subject,acts,and procedures,and the phenomenon of misplacement such as administrative coercive execution being enforced by judicial organizations,and judicial coercive enforcement being conducted by administrative organizations.The administrative coercive execution is the execution of the specific administrative acts,and shall be enforced by administrative organizations through administrative procedure,while the judicial coercive execution is the enforcement of judicial judgments,and shall be executed by people's courts through judicial procedure.In accordance with the ideal rule,all kinds of execution acts shall be reformed and reevaluated,and incorporated into the different scopes regulated by administrative procedure law or administrative litigation law.Therefore,the adjusting plan with respect to the application scope shall be established to make an administrative procedure law and revise the administrative litigation law.