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作业1参考答案本题属于小论文，基本原理在 教材第17-19页、第24页、第201页。问答3：行政救济的途径有二种：行政机关救济和司法机关救济。例：张三和李四打架，张三把李四打伤（轻微伤），县公安局对张三作出拘留证15天的决定，张三不服。在这种情况下，根据治安管理处罚法、行政复议法和行政诉讼法的规定，张三可以向市公安局或县人民政府申请行政复议，也可以向县人民法院提起行政诉讼。1、结合工作实际，谈谈行政法基本原则在实践中的运用在深圳的出现公安机关对于嫖客、卖淫、拉皮条和妈眯的游街示众的处罚，本人也是一个从事相关工作的工作人员，认为这样的行为是不妥当，严重违背了行政法的合法性原则的要求。（1）公安机关根据治安管理处罚法的授权，是能够管理社会治安的部门，但是，并没有规定到，作为公安机关对于卖淫嫖娼等人员有进行游街示众的处罚的权力。仅仅是规定到罚款或者行政拘留、警告的处罚手段。作为公安机关不能够自己创造相关的处罚种类来进行处罚，仍然必须是强调法律本身的规定、法律本身的授权。（2）该行为的产生，恰恰表明公安机关在执法的过程中，没有依照法律的，而是依照我们传统上的道德来执法，来进行对对方进行惩罚。某学者言，作为现代的政府没有资格去做道德的褒贬，因为褒贬已经含在立法当中了，法律并没有专门规定这样的一种处罚手段，你就不能够表露出来你的道德评价的态度，对对方进行羞辱的。你的责任就是老老实实地执法。当然，老百姓就可以，你可以对卖淫嫖娼进行道德上的辩护，在法律的范围内批评。警方的示众，其实是一种邀请，邀请公众围观，并向着被处罚者拿起第一块石头。就像圣经中那个著名的处罚妓女的故事一样。这种示众本身就是反道德的。它把羞辱者的道德水准，拉到了被羞辱者之下。本人觉得，在今后的相关的工作中，还是要避免发生类似的错误，要依法执法、科学执法。这样要做好三项工作。（1）深刻认识法治法治，就是一切以法律为依据的社会秩序和生活方式，即使是行政主体在行使行政权的过程中。这里强调公民的基本权利与自由是应当受到法律的保护，反对特权和权力的滥用等等。实质上，它不是说法律也要人去执行，而是表明当法律与个人意志相冲突的时候，作为法律所代表的意义是高于个人的意志。根据布莱克斯通的明言，“国王不应当服从任何人，但是应当服从上帝和法律”。具体行政执法而言，就是强调合法性原则.（2）在执法的过程中，不仅仅遵守相关的实体法律，还要遵守相应的程序法。如当对对方作出不利事务的时候，应当是给予其申辩、反驳的机会，作为我们执法者应当是双方的意见都要认真听取，同时告知其可以申请救济，如行政复议和行政诉讼。（3）在执行的过程中，还要合理执法。也就是主观上的动机要符合法律目的，而且要适应当地的民俗、情理，在法律规定的范围来进行执法,也就是贯彻行政合理性的原则。所谓行政主体，是指享有国家行政权力，能够以自己的名义从事行政管理活动，并能够独立承担由此产生的法律责任的组织。那作为大家，如何判断对方是否是一个行政主体？那我们就要把握住行政主体的基本特征：（二）具有以下特征：1、行政主体享有国家行政权力，实施行政活动的组织这样的一个特征与其他国家组织进行了区分。 人大不是行政主体。因为人大依照宪法和组织法的规定，享有的是立法权力，它显然不是行政主体，而是立法主体； 那作为法院、检察院这样的国家机关同样也不是。因为作为法院、检察院根据宪法的规定，享有的是司法权力，也不是行政主体，而是司法主体。2、行政主体是依法能够以自己名义行使行政权的组织主要是说作为行政主体应该是具有独立的法律人格。比方说，作为遇到违反治安管理处罚条例的行为，一般情况下就是公安局内部的治安科来进行处罚的，那作为汕头市公安局治安科是不是一个行政主体呢？这里仍然不是，要成为行政主体必然是能够以自己的名义来行使行政权的组织。在处罚决定书上，上面的印章其实是汕头市公安局。所以，作为治安科不是行政主体，在该行政处罚的法律关系当中，真正的行政主体应该是汕头市公安局。3、行政主体是能够独立对外承担法律责任的组织（1）治安联防队不能够成为行政主体。因为它不能够独立承担行政责任。最终，作为法院仍然是根据行政诉讼法的规定，以公安机关为被告.根据行政处罚法第十八条第一款的规定，行政机关可以依照法律、法规或者规章的规定，可以在法定权限内委托符合本法第十九条规定的条件的组织实行行政处罚。第三款的规定，作为受委托组织在委托范围内，以委托行政机关名义实施行政处罚。（2）公安局治安科同样也是不能够成为行政主体。因为它不能够独立承担行政责任。最终，法院仍然是将公安局列为被告。作为原告如果是要求对方进行国家赔偿，仍然是将汕头市公安局列为行政赔偿义务机关。当然,比较简单的方法，就是直接看相关的法律规定，根据规定来判断其是否为行政主体。道路交通安全法第五条规定，国务院公安部门负责全国道路交通安全管理工作。县级以上地方各级人民政府公安机关交通管理部门负责本行政区域内的道路交通安全管理工作。县级以上各级人民政府交通、建设管理部门依据各自职责，负责有关的道路交通工作。显然，作为地方公安机关的交通管理部门基于授权就可以作为行政主体，独自管理。 治安管理处罚法第七条国务院公安部门负责全国的治安管理工作。县级以上地方各级人民政府公安机关负责本行政区域内的治安管理工作。治安案件的管辖由国务院公安部门规定。第九十一条治安管理处罚由县级以上人民政府公安机关决定；其中警告、五百元以下的罚款可以由公安派出所决定。这里也表明作为治安案件，就是由本地方的公安机关负责。而对于警告、五百元以下的罚款则可以有公安机关的派出机构来决定，成为法律、法规授权的组织。3、行政救济的途径有哪些（须举例说明）我国行政救济的途径主要是两种，就是行政机关救济和司法机关救济（1）行政机关救济是指行政管理相对方依法向有权的国家行政机关请求对行政主体的行政违法或者行政不当的具体行政行为进行纠正或者追究其行政责任的一种救济途径。在我国，这里主要是通过行政复议的方式来实现。 如某人对于某区公安局的处罚不认可，认为其行为是一个违法的行政行为，可以向其上一级的机关提出复议，如向汕头市公安局或者区政府提出，由其来审查相关的决定的是否合法。（2）司法机关的救济 也就是行政诉讼，是指作为审判机关的人民法院接受行政管理相对方的诉讼请求，依照法定的审判职权和诉讼程序，通过处理和裁决行政争议，纠正行政违法，维护相对方的合法权益，监督行政主体的行政活动。作为法院主要是对具体行政行为的合法性进行审查，不对具体行政行为的合理性进行审查，也就是说作为行政主体的行为，审查过程中只是审查涉及到行政违法行为的部分，作为法院可以要求对方承担相应的行政责任。当然，这里也有例外，就是对于显失公正的行政处罚的行政行为，这里就可以进行合理性审查。最后可以直接判决变更。具体如同现在比较常见的民告官的官司，如你对于区公安局这样的官，他们具体的处罚行政行为不服从，就可以依法提出行政诉讼，寻求区法院法院的帮助，让其对于进行救济，保护你的合法权益，从而维护机关依法行政。（3）行政赔偿也是行政救济中很重要的组成部分。 当国家机关和国家机关工作人员违法行使职权过程中侵犯公民、法人和其他组织的合法权益并且造成损害时，受害者有权依照国家赔偿法取得国家赔偿。如被公安局违法拘留，被拘留者可以要求实施该行为的公安局予以国家赔偿 所以说，当公民的权利受到行政机关的侵害，作为当事人如何寻求行政救济，主要两种手段，一种就是向法院打官司，就是司法机关救济，另一种手段称之为行政机关救济，主要是向该机关的上一级行政机关申请复议为主。当然，还可以专门提出或者附带与诉讼、复议中提出行政赔偿的请求。 请您删除一下内容，O(_)O谢谢！2016年中央电大期末复习考试小抄大全，电大期末考试必备小抄，电大考试必过小抄Basketball can make a true claim to being the only major sport that is an American invention. From high school to the professional level, basketball attracts a large following for live games as well as television coverage of events like the National Collegiate Athletic Association (NCAA) annual tournament and the National Basketball Association (NBA) and Womens National Basketball Association (WNBA) playoffs. And it has also made American heroes out of its player and coach legends like Michael Jordan, Larry Bird, Earvin Magic Johnson, Sheryl Swoopes, and other great players. At the heart of the game is the playing space and the equipment. The space is a rectangular, indoor court. The principal pieces of equipment are the two elevated baskets, one at each end (in the long direction) of the court, and the basketball itself. The ball is spherical in shape and is inflated. Basket-balls range in size from 28.5-30 in (72-76 cm) in circumference, and in weight from 18-22 oz (510-624 g). For players below the high school level, a smaller ball is used, but the ball in mens games measures 29.5-30 in (75-76 cm) in circumference, and a womens ball is 28.5-29 in (72-74 cm) in circumference. The covering of the ball is leather, rubber, composition, or synthetic, although leather covers only are dictated by rules for college play, unless the teams agree otherwise. Orange is the regulation color. At all levels of play, the home team provides the ball. Inflation of the ball is based on the height of the balls bounce. Inside the covering or casing, a rubber bladder holds air. The ball must be inflated to a pressure sufficient to make it rebound to a height (measured to the top of the ball) of 49-54 in (1.2-1.4 m) when it is dropped on a solid wooden floor from a starting height of 6 ft (1.80 m) measured from the bottom of the ball. The factory must test the balls, and the air pressure that makes the ball legal in keeping with the bounce test is stamped on the ball. During the intensity of high school and college tourneys and the professional playoffs, this inflated sphere commands considerable attention. Basketball is one of few sports with a known date of birth. On December 1, 1891, in Springfield, Massachusetts, James Naismith hung two half-bushel peach baskets at the opposite ends of a gymnasium and out-lined 13 rules based on five principles to his students at the International Training School of the Young Mens Christian Association (YMCA), which later became Springfield College. Naismith (1861-1939) was a physical education teacher who was seeking a team sport with limited physical contact but a lot of running, jumping, shooting, and the hand-eye coordination required in handling a ball. The peach baskets he hung as goals gave the sport the name of basketball. His students were excited about the game, and Christmas vacation gave them the chance to tell their friends and people at their local YMCAs about the game. The association leaders wrote to Naismith asking for copies of the rules, and they were published in the Triangle, the school newspaper, on January 15,1892. Naismiths five basic principles center on the ball, which was described as large, light, and handled with the hands. Players could not move the ball by running alone, and none of the players was restricted against handling the ball. The playing area was also open to all players, but there was to be no physical contact between players; the ball was the objective. To score, the ball had to be shot through a horizontal, elevated goal. The team with the most points at the end of an allotted time period wins. Early in the history of basketball, the local YMCAs provided the gymnasiums, and membership in the organization grew rapidly. The size of the local gym dictated the number of players; smaller gyms used five players on a side, and the larger gyms allowed seven to nine. The team size became generally established as five in 1895, and, in 1897, this was made formal in the rules. The YMCA lost interest in supporting the game because 10-20 basketball players monopolized a gymnasium previously used by many more in a variety of activities. YMCA membership dropped, and basketball enthusiasts played in local halls. This led to the building of basketball gymnasiums at schools and colleges and also to the formation of professional leagues. Although basketball was born in the United States, five of Naismiths original players were Canadians, and the game spread to Canada immediately. It was played in France by 1893; England in 1894; Australia, China, and India between 1895 and 1900; and Japan in 1900. From 1891 through 1893, a soccer ball was used to play basketball. The first basketball was manufactured in 1894. It was 32 in (81 cm) in circumference, or about 4 in (10 cm) larger than a soccer ball. The dedicated basketball was made of laced leather and weighed less than 20 oz (567 g). The first molded ball that eliminated the need for laces was introduced in 1948; its construction and size of 30 in (76 cm) were ruled official in 1949. The rule-setters came from several groups early in the 1900s. Colleges and universities established their rules committees in 1905, the YMCA and the Amateur Athletic Union (AAU) created a set of rules jointly, state militia groups abided by a shared set of rules, and there were two professional sets of rules. A Joint Rules Committee for colleges, the AAU, and the YMCA was created in 1915, and, under the name the National Basketball Committee (NBC) made rules for amateur play until 1979. In that year, the National Federation of State High School Associations began governing the sport at the high school level, and the NCAA Rules Committee assumed rule-making responsibilities for junior colleges, colleges, and the Armed Forces, with a similar committee holding jurisdiction over womens basketball. Until World War II, basketball became increasingly popular in the United States especially at the high school and college levels. After World War II, its popularity grew around the world. In the 1980s, interest in the game truly exploded because of television exposure. Broadcast of the NCAA Championship Games began in 1963, and, by the 1980s, cable television was carrying regular season college games and even high school championships in some states. Players like Bill Russell, Wilt Chamberlain, and Lew Alcindor (Kareem Abdul-Jabbar) became nationally famous at the college level and carried their fans along in their professional basketball careers. The womens game changed radically in 1971 when separate rules for women were modified to more closely resemble the mens game. Television interest followed the women as well with broadcast of NCAA championship tourneys beginning in the early 1980s and the formation of the WNBA in 1997. Internationally, Italy has probably become the leading basketball nation outside of the United States, with national, corporate, and professional teams. The Olympics boosts basketball internationally and has also spurred the womens game by recognizing it as an Olympic event in 1976. Again, television coverage of the Olympics has been exceptionally important in drawing attention to international teams. The first professional mens basketball league in the United States was the National Basketball League (NBL), which debuted in 1898. Players were paid on a per-game basis, and this league and others were hurt by the poor quality of games and the ever-changing players on a team. After the Great Depression, a new NBL was organized in 1937, and the Basketball Association of America was organized in 1946. The two leagues came to agree that players had to be assigned to teams on a contract basis and that high standards had to govern the game; under these premises, the two joined to form the National Basketball Association (NBA) in 1949. A rival American Basketball Association (ABA) was inaugurated in 1967 and challenged the NBA for college talent and market share for almost ten years. In 1976, this league disbanded, but four of its teams remained as NBA teams. Unification came just in time for major television support. Several womens professional leagues were attempted and failed, including the Womens Professional Basketball League (WBL) and the Womens World Basketball Association, before the WNBA debuted in 1997 with the support of the NBA. James Naismith, originally from Al-monte, Ontario, invented basketball at the International YMCA Training School in Springfield, Massachusetts, in 1891. The game was first played with peach baskets (hence the name) and a soccer ball and was intended to provide indoor exercise for football players. As a result, it was originally a rough sport. Although ten of Naismiths original thirteen rules remain, the game soon changed considerably, and the founder had little to do with its evolution. The first intercollegiate game was played in Minnesota in 1895, with nine players to a side and a final score of nine to three. A year later, the first five-man teams played at the University of Chicago. Baskets were now constructed of twine nets but it was not until 1906 that the bottom of the nets were open. In 1897, the dribble was first used, field goals became two points, foul shots one point, and the first professional game was played. A year later, the first professional league was started, in the East, while in 1900, the first intercollegiate league began. In 1910, in order to limit rough play, it was agreed that four fouls would disqualify players, and glass backboards were used for the first time. Nonetheless, many rules still differed, depending upon where the games were played and whether professionals, collegians, or YMCA players were involved. College basketball was played from Texas to Wisconsin and throughout the East through the 1920s, but most teams played only in their own regions, which prevented a national game or audience from developing. Professional basketball was played almost exclusively in the East before the 1920s, except when a team would barnstorm into the Midwest to play local teams, often after a league had folded. Before the 1930s very few games, either professional or amateur, were played in facilities suitable for basketball or with a perfectly round ball. Some were played in arenas with chicken wire separating the players from fans, thus the word cagers, others with posts in the middle of the floor and often with balconies overhanging the corners, limiting the areas from which shots could be taken. Until the late 1930s, all players used the two-hand set shot, and scores remained low. Basketball in the 1920s and 1930s became both more organized and more popular, although it still lagged far behind both baseball and college football. In the pros, five urban, ethnic teams excelled and played with almost no college graduates. They were the New York Original Celtics; the Cleveland Rosenblums, owned by Max Rosenblum; Eddie Gottliebs Philadelphia SPHAs (South Philadelphia Hebrew Association); and two great black teams, the New York Renaissance Five and Abe Sapersteins Harlem Globetrotters, which was actually from Chicago. While these teams had some notable players, no superstars, such as Babe Ruth, Jack Dempsey, or Red Grange, emerged to capture the publics attention as they did in other sports of the period. The same was true in college basketball up until the late 1930s, with coaches dominating the game and its development. Walter Doc Meanwell at Wisconsin, Forrest Phog Allen at Kansas, Ward Piggy Lambert at Purdue, and Henry Doc Carlson at Pittsburgh all made significant contributions to the games development: zone defenses, the weave, the passing game, and the fast break. In the decade preceding World War II, five events changed college basketball and allowed it to become a major spectator sport. In 1929, the rules committee reversed a decision that would have outlawed dribbling and slowed the game considerably. Five years later, promoter Edward Ned Irish staged the first intersectional twin bill in Madison Square Garden in New York City and attracted more than 16,000 fans. He demonstrated the appeal of major college ball and made New York its center. In December 1936, Hank Luisetti of Stanford revealed the virtues of the one-handed shot to an amazed Garden audience and became the first major collegiate star. Soon thereafter, Luisetti scored an incredible fifty points against Duquesne, thus ending the Easts devotion to the set shot and encouraging a more open game. In consecutive years the center jump was eliminated after free throws and then after field goals, thus speeding up the game and allowing for more scoring. In 1938, Irish created the National Invitation Tournament (NIT) in the Garden to determine a national champion. Although postseason tournaments had occurred before, the NIT was the first with major colleges from different regions and proved to be a great financial success. The National Collegiate Athletic Association (NCAA) created its own postseason tournament in 1939 but did not rival the NIT in prestige for some time. The 1940s saw significant changes for college basketball. Players began using the jump shot after Kenny Sailors of Wyoming wowed the East with it in 1943. The behind-the-back dribble and pass also appeared, as did exceptional big men. Bob Kurland at Oklahoma A&M was almost seven feet tall and George Mikan at DePaul was six feet ten inches. While Kurland had perhaps the better college career and played in two Olympics, he chose not to play professional ball, whereas Mikan became the first dominant star in the pros. Their defensive play inspired the rule against goal tending (blocking a shot on its downward flight). Adolph Rupp, who played under Phog Allen, also coached the first of his many talented teams at Kentucky in that decade. However, in 1951, Rupp and six other coaches suffered through a point-shaving scandal that involved thirty-two players at seven colleges and seriously injured college basketball, particularly in New York, where four of the seven schools were located. While the game survived, the NCAA moved its tournament away from Madison Square Garden to different cities each year and the NITs prestige began to decline. Professional basketball remained a disorganized and stodgy sport up until the late 1940s, with barnstorming still central to the game and most players still using the set shot. In 1946, however, hockey owners, led by Maurice Podoloff, created the Basketball Association of America (BAA) in the East to fill their arenas, but few fans came, even after Joe Fulks of Philadelphia introduced the jump shot. The BAAs rival, the National Basketball League, had existed since the 1930s, had better players, like Mikan of the Minneapolis Lakers, Bob Davies of the Rochester Royals, and Dolph Shayes of the Syracuse Nationals, but operated in much worse facilities and did not do much better at attracting audiences. In 1948, Podoloff lured the Lakers, Royals, and two other teams to the BAA and proposed a merger of the two leagues for the 19491950 season. The result was the National Basketball Association (NBA), with Podoloff its first commissioner. The seventeen-team league struggled at first but soon reduced its size and gained stability, in large part because of Mikans appeal and Podoloffs skills. Despite the point-shaving scandal, college ball thrived in the 1950s, largely because it had prolific scorers and more great players than in any previous decade. Frank Selvy of Furman and Paul Arizin of Villanova both averaged over forty points early in the decade, while Clarence Bevo Francis of tiny Rio Grande College in Ohio amazed fans by scoring 116 points in one game while averaging 50 per game for a season. The decade also witnessed some of the most talented and complete players ever. Tom Gola at LaSalle, Bill Russell at San Francisco, Wilt Chamberlain at Kansas, Elgin Baylor at Seattle, Jerry West at West Virginia, and Oscar Robertson at Cincinnati, all had phenomenal skills that have since been the measure of other players. And in 1960 one of the best teams ever, Ohio State, won the NCAA title led by Jerry Lucas and John Havlicek. Professional basketball underwent major changes in the 1950s that helped increase its popularity. In 1950, Earl Lloyd, from West Virginia, played for the Washington Capitols and became the first African American to play in the NBA. In 1954, Danny Biasone, owner of the Syracuse Nationals, persuaded the NBA to institute the twenty-four-second shot clock, requiring a team to shoot
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