On the administrative investigation of the civil rights and obligations

Paper Keywords: civil rights civil obligations administrative investigation
Abstract: Qualitative survey of the current Administration are not allowed on its system of grants should not be biased towards the executive power of investigation should be more emphasis on the relative protection of human and civil rights related to their obligation to set reasonable limits to help ensure that the balance of the three. This administrative investigation of civil rights protection and relief, as well as the obligations of citizens as a clue, with case and the relevant foreign legal system, exercise of the right of administrative investigation and control, construction of administrative investigation procedures and other related theories .

Previous academic Research on the administrative investigation extremely seriously, was also related to only a handful of. In fact, the theoretical system of administrative investigation quite numerous and, in the entire theoretical system of administrative Law is also an increasingly important position, the administrative investigation of the foreign ones have been very behind. This administrative investigation not only in the positioning of a dispute, with the unclear distinction between related concepts; also in there is no unified <<Administrative Procedure Law ">, scattered administrative investigation depArtments of administrative Law system, to provide grant Administration rights-based agencies in the investigation, the lack of obligations on the administrative body, the lack of attention to the rights of investigation; and specific procedures for construction chaos. This paper aims to address the issue.

First, the theoretical basis
Administrative investigation is independent of whether the administrative act, which related concepts and administrative checks and other differences and common, there has been differences of opinion. Some scholars believe that China's administrative investigation is a pArt of administrative decision, administrative action should not be regarded as independent ; and administrative inspection is an independent administrative action, the two are not comparable, of course, can not be universal. Some scholars believe that the administrative investigation and administrative check is one thing, is due to theoretical studies over the past left behind and the concept of chaos. I that, broadly speaking, all the executive authorities in the context of administrative authority to conduct all administrative acts, then the behavior is also administrative act administrative investigation, but it usually presents a pArt of administrative decision, it can be inferred: administrative investigation is independent of the executive authority the right to completely may directly or indirectly affect the relative rights of persons; administrative investigation procedures are independent of the administrative procedure, should improve its various aspects; administrative investigations and administrative checks are two concepts should not be confusion ravioli .

As mentioned earlier, scholars have long neglect of the administrative inspection, that the administrative inspection is only a pArt of administrative decision, not a separate administrative action, administrative inspection exercise of the right will not have caused relatively independent of the executive decisions impact. Through this analysis, to clarify: the independence of administrative investigation behavior, but also administrative action. With this theoretical premise, the exercise of investigative powers on the executive process of the relative impact of specific procedures and administrative investigations should be designed to protect the relatively human rights and other issues are resolved.

Second, the administrative investigatory powers and civil rights and obligations of the conflict and coordination
(A) the right of legal control of administrative investigation and protection of the rights of citizens
Administrative body of national legislation is allowed to have a greater right of administrative investigation, and because the specific purpose of administrative investigation, objects and environment vary, the principal Law enforcement investigations in the exercise of the right of administrative discretion tend to have a larger space. Is discretionary space exists, the executive power of investigation constitute a threat to the rights of citizens, without corresponding legal control, instances of abuse of administrative power of investigation will abound.

First, the strict conditions for an administrative investigation. In general, according to the different nature of power, administrative investigation can be divided into arbitrary administrative investigations and mandatory administrative investigation. The former is in the relative administrative body of voluntary assistance of another, such administrative investigation in general, the relative who did not physical force, nor have direct legal effect, suitable conditions can be more broad or vague; the latter is in an emergency or a relative resistance to the Administration under investigation, the Chief of the main use of force of power carried out. Such a command of the administrative investigation, and mandatory features of the implementation of strict conditions for its application it is very necessary. specifically include the following: First, the statutory right to set. administrative investigation power only by the legislature created by legislation, and other organs were only entitled to the right of a range of provisions, pArticularly the executive, not to create its own administrative investigation to their own means of range. The second is a specific subject. administrative investigation of the implementation of the main administrative body in principle, must have qualifications , that is able to name their own independent authority to exercise administrative investigation, and bear the legal consequences arising therefrom. Accordingly, the administrative investigation is generally the main terms and authorize the Chief of the main administrative body, while in some countries, the Administrative Procedure Act in accordance with their actual permitting administrative body entrusted investigations. For example <<Austrian Administrative Procedure Act "> provides a delegate of Public appraiser or court investigation practices, which should be our reference. The third is object-specific. administrative investigation directed against the objects may be objects, places or personal. check on things, sampling, or deposited, temporarily, people involved in the relative is entitled to the exclusive ownership; of places to enter, inspect, involving personal inviolability of the home business of constitutional rights or freedoms; inventory, examine even the search, are related to the citizens the most basic personal rights and freedoms. Therefore, the administrative survey is bound to be severely restricted, reference criminal search warrant in the system, the executive certificate only after the court investigation in order for the certificate of survey permission to investigate the specific subject matter. implementation of "one survey, the first application, an act" to ensure that the administrative investigation power is not abused, to ensure normal production and living relative will not be violated.

Second, improve the administrative investigation means. As mentioned earlier, an administrative investigation can be divided into arbitrary administrative investigations and mandatory administrative investigation, according to the principle of legal reservation, means self-evident to the mandatory administrative investigation must be clearly defined by Law, otherwise for the illegal invasion of civil liberties, the executive must bear appropriate responsibility; as arbitrary administrative investigation, the relative who agreed to voluntary investigations, there is no legal authority, but does not rule out the principle of executive authority bound by law to retain. what we called legitimacy. on the reasonableness issue, according to the principle of proportionality, either the appropriateness, which requires the means adopted to achieve the purpose pursued; the second is the necessity requirement, that in order to achieve the purpose sought by means of choice almost all the optional items in the smallest; third is to require the ratio between means and ends, that is an administrative measure, though in line with the above two requirements, but if it is actually more than administrative purposes, the results will bring the value of the infringement, then the key administrative measure is unreasonable.

Finally, standardize administrative investigation procedures. Administrative investigation process is the administrative investigation agencies in the administrative investigation and the steps taken by the general term for the way. Administrative investigation in the following general rules of administrative procedure on the basis of the procedures should have their own unique, I will The third question in detail, it is inadequate in this state.

(B) the right to an administrative investigation with the assistance of the security and obligations of citizens
Modern expanding governmental functions, the Chief has infiltrated every aspect of people's lives, the executive should and must have extensive powers of investigation, of course, this power is limited, is controlled by law. And the right of the corresponding administrative investigation is the Chief obligations relative to assist the investigation there also should be limits. administrative investigation is to protect the right of the value of existing administrative authority properly and timely administrative decisions, this is sometimes necessary to assist in the administrative regulations relative obligations. This will help the Chief authorities quickly and efficiently, at low cost to collect information in order to improve administrative efficiency. only to ensure that the obligations set of legal assistance, reasonable, and ensure that the executive power of investigation to assist the investigation and the relative appropriate balance between obligations in order to create mutual confidence in the space, eliminating the gap between the two and the opposition, to truly improve the administrative efficiency and facilitate the realization of public interests. Links http://www.hi138.com Research Papers Download in the administrative investigation assistance obligations relative to the investigation analogy to testify in the criminal investigation to study the system.

First, in criminal investigations, no person shall be required to provide evidence against their own. The United States experienced a heated debate, it will apply only to the traditional right to silence in criminal law to expand the use of administrative law Shang. That "the prohibition of forced self-incrimination "principle is a privilege guaranteed by the Constitution.

Secondly, in the western legal system, if the parties have close relatives with the defendant or the husband-wife relationship, you can request to testify obligations Privilege. In fact it originated from the ancient law of "shielding may Relatives", however, present a more complete criminal law to family members have the right to refuse to testify between the problem and there is no requirement, the administrative law obligation to assist in investigating the issue of exemption in the theory and practice, and even less was discussed.

Finally, the ancient Roman proverbs goes, "Lawyers shall not be a principal witness in the case," the British law inherited and developed this concept, the formation of a far-reaching law privilege theory: First, in all cases, the relative with his lawyer to seek and provide legal advice within the legal time of the exchange of information necessary, subject to the protection of privilege, no person shall require the relative or lawyer discovery of these exchanges. Second, with the first relative between three or relative's counsel and the third between the preparation for the anticipated or pending litigation and the exchange of information, but also protected by the privilege. China <<Counsel Law "> Article 33 of the lawyers have confidentiality obligations, but Article 35 provides that lawyers shall not conceal the fact, or practicing certificate will be revoked, or even be held criminally responsible (article 45), which led to lawyers practicing in embarrassment. Therefore, the privilege in criminal law and lawyers established as soon as the field of administrative law, the maintenance of the power of the parties has important practical significance.

Countries according to their national conditions but also provides many other types of privileged groups. For example, in the United States between priest and penitent privilege rules also apply, but in the United Kingdom, priests and communication between the penitent does not enjoy the privilege. Specific to China obligations of the administrative investigation to assist the exemption should learn the advanced experience of foreign countries combined historical tradition and the actual conditions to develop.

Third, the construction of administrative investigation procedures
(A) the procedure prior to the survey generally follow the following steps: First, prior notice to the parties, prior to the executive during the field survey, an emergency or prior notice will affect the objectives of the survey, it should notify the parties and give the parties time to prepare; II is that identity, that the executive of the party conducting the investigation before the proof of identity and produce the legal survey documents, the investigations reasons. Third, it shall inform the relative relief against the investigation means, this should be highlighted. In addition, special circumstances also specific procedures to be followed, such as access to citizens of residential surveys, should first obtain a warrant shall issue (I believe that the investigation order issued by the People's Court); of citizens, legal persons of the bank deposit accounts and savings deposits to investigate, to have a certain format requirements of the permit.

(B) Construction of the survey process to the hearing system as the core, supplemented by other supporting systems. "Executive participation" principle is the inevitable connotations of modern administrative procedures, administrative investigation process is completely done unilaterally by the executive is very difficult only the relative active participation of the executive authorities of information obtained before the full, true, whereby decisions will be correct and timely. In addition, the relative participation in the process of administrative investigation, administrative investigation will be more information to determine they convinced the decision will be made accordingly as it is easier to accept, will really improve administrative efficiency, to achieve administrative purposes. Similarly, the "public Administration" principle in the modern administrative procedures important role in the state need not apply , it is worth noting that the Chief Administrative Investigation not only respond to direct interested public open society should also be open, not only because of the open applications, but also take the initiative to the public. hearing system is both "executive participation" and "Open Administration Mu idea, it should be placed in the administrative investigation of procedures for building the core position.

Specifically, the administrative investigation of the hearing system includes two modes: first, a formal trial-type hearing model for the process of investigation or the results may or consequential damages caused by the relative rights and interests of the case. It focuses on the defense of human rights protection is relatively to prevent the investigative power is misused, so the specific system should include a hearing officer to remain neutral, allowing the parties to public debate and cross-examination, prohibition procedures one-sided contacts, files exclusion and on the hearing's decision to force an explanation. Second, the consultative informal hearing mode mainly applied to the relative rights and interests do not involve the situation, so the specific procedural arrangements for discretion by the executive authorities. Other supporting systems are said to teach the system, open system of administrative investigations and detailed survey of right of defense to force protection mechanism.

(C) the investigation of the program settings for the administrative investigation primarily the result of the information on the findings not be used for purposes other than law. In addition, the executive should take to protect trade secrets and personal privacy responsibilities.

IV Conclusion
With the continuous development of the continuous expansion of administrative areas, administrative investigation will follow the increasing use of the right to development, and our study of the administrative investigation had lagged behind the Western countries. I appeal to the administrative inquiry into the scope of administrative action, to the modern concept of law to be regulate. On this basis, the study of administrative investigative powers of control and the relative rights of protection, and further outlines the administrative investigation process build framework. by China <<Administrative Procedure Act "> introduction provided time on the agenda in order to initiate an administrative investigation on the cause of academic attention. Links http://www.hi138.com Research Papers Download