行政责令行为法律规范分析及立法规范

责令行为规范普遍存在于现行法律中,责令行为规范可分为司法责令规范和行政责令规范。行政责令规范可进一步分为内部行政责令规范和外部行政责令规范。通过对行政责令行为内涵的考量,可以确立特定的界分基准,将外部责令行为中的处罚性责令行为与命令性责令行为进行明确区分。根据法律规范中“制裁”要素的结构,可将具有行政命令性的责令行为规范分为五种类型,不同结构类型体现出不同的法律规范功能。现行的行政责令行为规范存在词义界定不明确、结构选用不合理、行为配置不科学等诸多问题,有必要构建典型的行政责令行为规范模型,以推动行政责令法律规范的统一性、规范性和科学性。

An Analysis of the Legal Provisions and Legal Legislation on Administrative Orders

Order provisions,a common part of the current law,can be dividedinto provisions of judicial order and thoseof administrative order .The provisionsof administrativeordercan be further dividedinto inner order actions and external order actions . An examination of the connotation of the administrative order action maylead to theestablishment of specificstandards,with the helpof which theexternalorder actions can clearly be classified into penalty order actions and non-penalty order actions . It is necessary to classify order actions before their nature can be determined . The nature of ″ordering for suspension″can be classified from the following three aspects . First,″o rdering for suspension″with a penalty naturecan only be made after legal qualification has been obtained .Secondly,the overall suspension of the party's business shall be classified as penaltyorder action,while the order to suspend illegal business shall be classified as non-penalty order action . Finally,ordering to suspend non-production and non-business activities is not equal to″o rdering for suspension of production or business,″n or does it have the attributes of administrative penalty .The natureof other order actions can be judged from the punitive features of the administrative penalty . Generally,the structure of legal legislation is composed of three elements : the assumed element,the processing element and the sanctionative element . According to the structure of the″sanctionative element″in the order provision,non-penalty order actions are categorized into five types,namely,unconstrained single order structure,constrained single order structure,selecting punishment structure,conditioning punishment structureand punishment structure .Different types of structure reflect different functions of regulation . The current provisions of administrative order have some demerits,such as inaccurate term definition,unreasonable structure choice,and unscientific action establishment . Specifically speaking,the″order″in some provisionsapplies to the parties with no relationshipof subordinationor management,which goes against both the general meaningandspecificmeaning of″order .″S omeprovisions do not take into account the structure function and applicable cases of the″sanctionative element,″which results in the unfair legislation .Some provisions do not distinguish the function of administrative order from that of administrative penalty,and do not takeintoaccount the sanction strength of specificadministrative orders and administrative penalties . It is necessary to construct a typical model for administrative order to make the administrative legal provisions more unified,normative and scientific . The typical model for administrative order should obey two principles :fully embodying the remedial function of order actions and ensuring the execution of administrative order . In the combined order provisions,administrative orders become the assistant measures of other administrative actions,and are absorbed by other administrative actions in procedures and relief-granting . The provision of″unconstrainedsingle command structure″does not include the legal consequence of failing to perform the administrative order,which greatly weakens its authority and executive effect . Therefore,″the constrained single command structure″should be taken as the typical model of administrative order,that is,″a dministrative order +′refused to…′+ sanctions .″T he key parts of typical model are″administrative order″and″sanctions .″ The major function of the″sanctions″is ensuring the performance of administrative orders .Thus,the″sanctions″should normally contain the executive measures as well as the corresponding punitive measures if necessary .