On the "state of emergency" concept analysis

Paper Keywords: "emergency" state of emergency emergency Law constitutional Law
Abstract: The theory and practice, the meaning of a state of emergency exists broad and narrow sense of the Constitution and relevant Laws and regulations related to the meaning of the state of emergency. That the future development of <<State of Emergency Law "> should be used to narrow the emergency state, defined as a temporary response to the state constitution.

"State of emergency" in person in 2004 the Constitution was written, but supporting the development of state of emergency did not fully keep up, just put a <<Emergency Response Act ">. In Chinese," a state of emergency "in Words can have multiple meanings, which makes present in a variety of Articles in the current "state of emergency," meaning not the same, _L theoretical discussion of the "emergency" is often a disconnect with the reality of our place.

First, the constitutional state of emergency in the sense of
"State of Emergency" (state of emergency) is the constitutional rule of Law environment in the Western product as a "system of facts" ordinary Western sense but probably only one indescribable. State of emergency in the birth of the system have a great relationship and constitutional. ancient monarchical power unlimited, as long as the monarch is willing, ready to be infringing upon the rights of the private rights of citizens, it is no peacetime and emergency divided into the modern society only after the request to limit the power of only This may be a state of emergency can not only protect the civil rights and safeguarding social stability and national security system. So, it should be discussed from a constitutional point of view the meaning of a state of emergency.

Some scholars believe that the state of emergency is a dangerous degree of illegal social order. This kind of qualitative state of emergency is accurate, but too simple. Some scholars believe that the state of emergency is a certain degree of risk of non-normal social state, including war, rebellion, economic crisis, serious natural disasters, major accidents disasters, serious outbreaks of infectious diseases, and major criminal offenses, all of normal social life is threatened by a serious impediment to law enforcement or the situation. Obviously, this view is to state of emergency caused by the normative concept and the reasons for the state of emergency "emergency" that describes the concept of mixed together. There are scholars believe that in the event of emergency is a threat to national survival of emergency, declared by the State A state of emergency on the exercise of the right to exercise state power and the expansion of derogations from human rights protection standards, and bound by international human rights law a temporary response to the state. This is a manifestation of the state of emergency in a more comprehensive view of content, but careful study it is still desired. state of emergency only in case of emergency powers can be exercised, the state of emergency is a prerequisite for the exercise of emergency powers. the idea of "emergency powers" to give "emergency" under the definition of a cycle can not help but defined arbitrarily. Another state of emergency, derogation from human rights and it is not constituent elements, but only a possible representation only.

Recently, scholars believe that the so-called state of emergency, is the power of the state organs in a serious threat to national unity, security, public safety or social unrest, riots or serious disturbances, and seriously affect the social stability of the major public events and other extraordinary circumstances, In order to stabilize social order and safeguarding the fundamental interests of the country and the people, according to state emergency powers in the form of a specific time and space within the temporary restriction or suspension of certain provisions of the Constitution or laws (except the right of derogation) of all or pArt of and strengthening the effectiveness of the legal system of state power. too much emphasis on this definition of "national emergency powers", so that needs to add "national emergency powers" is defined to be complete.

Second, the sense of international law a state of emergency
Sense of international law in the state of emergency, is a country in itself suffered serious threat to their survival and the fundamental interests of the national emergency, in order to cope with or eliminate this serious situation and take necessary actions. But this state of emergency and we have said not one thing, the DepArtment of the internationally wrongful act against the legitimate interests of another State the reasons for the exemption form.

Research in international human rights law in general, tend to be expanded on the concept of a state of emergency on the understanding that not only in accordance with the provisions of national law declared state of emergency, but also all of the derogation of human rights, characterized by the exercise of national emergency powers . a state of emergency in the event of national emergency after the public announcement of a derogation from human rights to the temporary features of the response state. such as the literature that the state of emergency is in the public crisis situations, to overcome the crisis, the State pArty taken in derogation of its human rights obligations under the Convention, special measures and impact measures.


Third, the existing norms of the state of emergency
Under the existing legal order in our country, the highly fragmented state of emergency law, legislators in different sources of law in any use of "war", "state of war", "mArtial law" and "emergency" and other legal terms. In the current state of emergency legislation system, the "war" and "sudden incidents" two words appear most frequently. and in these regulatory documents, for the "emergency" use and understanding of the specific term, or there is a big difference.

The higher ranks of the provisions of laws and regulations of the state of emergency, can be divided into two categories: (1) The department shall have the right to declare the legal status, such as <<Constitution of the PRC>> <<Basic Law>> < <Macao Special Administrative Region>> <<HKSAR Garrison Law "> <<the Macao Special Administrative Region of the Garrison Law"> <<Emergency Response Law "> <<Supreme Court on the implementation of <Administrative Procedure Law> number interpretations on the>> other; (2) a highly dangerous state of emergency or the fact that, for example, <<Patent Law "> <<Integrated Circuit Layout Design Protection Regulations>> <<Martial Law"> << Foreign Cooperative Exploitation of Offshore Petroleum Resources>> <"State Nuclear Emergency Plan>> <" State Environmental Emergency Plan>> <"State Disposal of City subway accident disaster contingency plans>> <" State Disposal of heavy, large forest fire emergency plan>> and so on. <<Security Management Punishment Law "> fifth ten provisions of the first paragraph (" the people's government refused to implement the law in emergency situations the decision issued, the command "), ambiguous statements, I believe that , from which the textual representation of view, when considered as the first case. reposted elsewhere in the Research Papers Download http://www.hi138.com the lower ranks of the normative documents, according to the author observed, is the fact that almost all state sense, rather than a constitutional law after the state announced. The author checks the people's court cases, 6 cases occurred in the "emergency" are all the facts state emergencies.

Fourth, "<Emergency Law"> in a state of emergency
In theory and practice, a state of emergency exists broad and narrow sense. Generalized state of emergency, as long as disturbing the normal order of society can be achieved things happen, or is defined as: a result of war, riots, natural disasters, economic crises, epidemics or industrial accidents and other crises, so that a country or parts of a country's social order and public safety is seriously threatened, the state of emergency to be declared and applicable laws, activate the emergency power to all emergency situations. on the narrow state of emergency, different countries have different definitions, for example, in some countries, the definition does not include a state of war, military status, state of siege in one or more of the emergency. At present, the system responding to public emergencies, there are national defense and war state (<<Constitution>> <<Defense Law "> requirements), emergency (<<Constitution>> <<Emergency Response Law"> requirements), and general social mobilization and emergency response (<<burst incident response Law "> requirements). If the authorization level, from the division of the first two constitutional provisions can be normalized as a class, then an administrative law sui generis. I believe that," <Emergency Law "> in "emergency" if it is defined as the broad sense, it could lead to abuse. that crucial moment but difficult to play its role. At the same time, inevitably with the <<National Defense Law "> <<Emergency Response Act"> and other laws content result in duplicate or conflict provisions. within the existing system, "<Emergency Law"> under the "emergency" or using the appropriate narrow in scope and with the national defense mobilization and general state of war emergency differentiated state of emergency.

The state of emergency and general emergency response to distinguish between the state, it is very easy. According to <<Emergency Response Act "> sixty-ninth Article (especially major incidents occurred, ... ... need to enter a state of emergency of "), both in degree only need to be distinguished. a state of emergency and war have some overlap, but the two are neither identical, nor a simple relationship between the species. a state of war in international law and domestic law on different meanings. sense of international law "state of war" is to define the legal status of this framework in two: one is the time frame, from the official start to the formal end of the war; the second is the scope of application of the framework, that between the belligerents. This happened at the national and state laws between countries, the adjustment by international law, stressed that changes the legal relationship between the belligerents. domestic law meaning of the "state of war" refers to the country at war Benguo in which social and legal status of nationals of the domestic law of such a "state of war", can be regarded as a very serious "state of emergency." <<Constitution>> text, involving "a state of war" and only two: on the National Standing Committee of the sixty-seventh paragraph first paragraph of Article XVIII (the National People's Congress in session, if you encounter an armed attack or the State must meet its international treaty between the common defense against aggression of the situation and determined that a state of war declared) and on the functions of the eighth President ten (declared into a state of emergency, declared a state of war, issues mobilization orders.) National People's Congress according to the Constitution can only "decide questions of war and peace," can not decide whether the provisions of "state of war" National People's Congress Standing Committee in the inter-sessional but can "decision declared state of war." This means that the NPC Standing Committee can decide, "a state of war," the power belongs only during the session of National People's Congress, "the decision of war and peace "power. this" war "on the scope of international law" state of war ", rather than prescribing how to run the state power and human rights, how to protect the domestic" state of emergency. "<<National Defense Law"> involved in the "war state" almost reproduces the <<Constitution>> the relevant content, and only on the relevant provisions of national defense mobilization slightly the so-called domestic law meaning of the "state of war" means. Seen in this light, in fact, the Constitution and relevant laws of China for the domestic state of emergency in the sense of law "state of war" and not provided, can be to <<Emergency Law "> to subsumtion the sense that the domestic law of the" state of war. "
In summary, from the perspective of the Constitution and the existing legal system to see the future, Yu emergency Law "> in the" emergency "should be referring to the right of the state organs at the serious threat to national unity, security, public safety or social unrest, violence or a serious disturbance, and seriously affect the social stability of the major public events such exceptional circumstances, provisions of the Constitution and relevant laws in particular, at a specific time and space within the temporary restriction or suspension of certain provisions of the Constitution or laws of all or part of the effectiveness (including the derogation of human rights protection standards, but bound by international human rights law) to strengthen national power, to stabilize social order and safeguarding the fundamental interests of the country and the people of the interim constitution should state. reposted elsewhere in the Research Papers Download http : / / www.hi138.com