CAJ | 학술논문

既有理论框架难以全面解释违建执法的困境。实际上，违建执法的困境反映执法领域国家能力的不足。从执法的结构和过程看，国家能力不足表现在多个层面：执法机构的“孤岛现象”普遍，不同机构之间难以有效合作；一线执法人员的素养欠缺，且其工作难以被执法机构有效考核；执法人员在进入社区空间、处理执法事务时受阻严重。由于国家能力的不足，执法人员常常接受执法对象的讨价还价，违建执法表现出“日常惰性-专项治理”的循环结构，强力执法与违法不究处于共生状态。改善社会治理，需要在执法领域强化国家能力，需要从执法机构、执法人员及其与社会的互动等多方面着手。
기유이론광가난이전면해석위건집법적곤경。실제상，위건집법적곤경반영집법영역국가능력적불족。종집법적결구화과정간，국가능력불족표현재다개층면：집법궤구적“고도현상”보편，불동궤구지간난이유효합작；일선집법인원적소양흠결，차기공작난이피집법궤구유효고핵；집법인원재진입사구공간、처리집법사무시수조엄중。유우국가능력적불족，집법인원상상접수집법대상적토개환개，위건집법표현출“일상타성-전항치리”적순배결구，강력집법여위법불구처우공생상태。개선사회치리，수요재집법영역강화국가능력，수요종집법궤구、집법인원급기여사회적호동등다방면착수。
It is difficult for the existing theoretical framework to comprehensively explain the dilemma of law enforcement against unauthorized construction. From the perspective of the structure and process of law enforcement, the state capabilities theory has a stronger explanatory power. This dilemma points to the inadequacies of state capabilities, which is manifested in the following aspects of law enforcement. Firstly, effective cooperation is difficult to carry out, hence the ＂islanding phenomenon＂ is widespread, between different law enforcement agencies. Secondly, frontline officials often lack professionalism and their work performance can not be evaluated effectively by law enforcement agencies. Thirdly, law enforcement officials are often met with serious hindrance when they try to enter into communities to perform their law enforcement duties. Due to the inadequacies of state capabilities, it is easy for those subjected to administrative law enforcement to bargain with law enforcement officials and law enforcement against unauthorized construction is characterized by a cyclic structure of ＂sloth daily work-special campaigns＂, that is, at sometimes the law is enforced strictly while at some other times law breakers are not punished at all. This situation is both the result and the manifestation of inadequacies of state capabilities. In order to improve social governance, China needs to take multiple measures to strengthen the state capabilities in the field of law enforcement, which involves many aspects of law enforcement agencies, law enforcement officials and their interaction with society.