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 .
胡建淼 胡晓军. 行政责令行为法律规范分析及立法规范[J]. 浙江大学学报(人文社会科学版), 2013, 43(1): 101-111.
Hu Jianmiao Hu Xiaojun. An Analysis of the Legal Provisions and Legal Legislation on Administrative Orders. , 2013, 43(1): 101-111.