Reconstruction Of Administrative Review Decision System

The administrative review decision is one of the core issues of the administrative review system.The purpose and function of the administrative review system are ultimately completed through the administrative review decision.The refinement of the administrative review decision is a sign that the administrative review system becomes mature.It requires a complete system of decision types,and each type has its clear application,so as to achieve its predictability and consistency.The continuous development of the administrative review decision system is a mirror of the continuous development of administrative relief system and the rule of law in China.After the founding of the People’s Republic of China,the administrative review system originated from the Measures for the Establishment of Financial Inspection Institutions,which was issued by the Ministry of Finance and approved by the State Council on November 15,1950.Since then,the laws and regulations on administrative review have gradually increased,but formed no integrated system.On January 1,1991,The implementation of the Administrative Review Regulations marked the establishment of a unified administrative review system in China,and established an administrative review decision system for the first time.On October 1,1999,The implementation of the Administrative Review Law marked the establishment of the administrative review system that confirmed by law,in which the administrative review decision system was restructured.On August 1,2007,TheRegulations for the Implementation of the Administrative Review Law began to be implemented,which concerned details.There are currently more than 140 regulations that govern the administrative review system,and some of them have more detailed provisions.The laws and regulations above constitute the legal basis of the administrative review and decision system.Analysis of these laws and regulations could clarify the general situation of the administrative review and decision system,and determine its theory on normative basis.Since 2010,the department of administrative review,organ of the Legal Affairs Office of the State Council,had began to promote typical cases of administrative review.After the institution reform in 2018,the Department of administrative review in the Ministry of Justice has undertaken this work.So far,238 typical cases have been announced.Based on these cases,combined with some cases published online by some administrative review organs,a comprehensive empirical analysis is carried out through administrative review decisions.Finally,with the relevant theories of the administrative review system,ways that may reconstruct the administrative review decision system in the Administrative review Law shall be revised.This article analyzes and resolves the problems in the current administrative review decision system from three levels:The first level is the general introduction of the thesis,which determines the basic concepts of the administrative review decision.First of all,the definition of administrative review decision,in this article,is narrow.It refers to a legal act with rights and obligations made by the administrative review law based on the fact and the power of review.It contains the formal administrative review decision types and the substantive case stipulated in and beyond the Article 28 "Administrative Review Decision" in Chapter 5.On this basis,the characteristics,expiration and legal effects of administrative review decisions were discussed.Secondly,it discusses the controversial nature of the administrative dispute review decision.It reviewed the general situation of the disputes and analyzed the reasons.Based on this,from the Constitution and related laws,this article demonstrates the controversial review decisions,which constitute the purpose of the elements,the power attribution and the review procedure.At the same time,it analyzes the review system of theadministrative review decision in administrative litigation and concludes that the review decision is an administrative act.Thirdly,from the current laws and regulations,the practice of setting the right for administrative review decisions has been formed,which has brought difficulties.From the perspective of China’s current law system,only laws and administrative regulations have the power to set,but if administrative review decisions are incorporated into the exclusive legislative matters,it will be more in line with the development direction of the administrative review system.Finally,this article discusses the type of administrative review decisions,analyzes the significance of the types and the factors that determine their types,and discusses the types of review decisions in theory and norms.The second level is the study of the specific types of administrative review decisions,which can be divided into positive,negative,and neutral types.Affirmative administrative review decision refers to the review that the object is legal and reasonable during the trial process,so as to affirm and support it.Currently,affirmative decisions include maintenance,confirmation,and rejection.In administrative litigation,the decision to dismiss the litigation request has replaced the maintenance,confirmation of legal or effective act,etc.It is originated from the overall reform of the administrative procedure system.In administrative review,it is still necessary to insist on maintaining the central position of affirmative administrative review decisions,which is the embodiment of the essence of the administrative review system.In some lower level norms,the confirmation decisions is added as an exception.From a theoretical or practical point of view,confirmation decisions is completely unnecessary.For the maintenance decision,the main problem currently is that the review body has not adhered to the principle of comprehensive review,and sometimes lacks justification for the rationality.At the same time,the scope of application has expanded compared to the legal norms,so the applicability rate remained high.The criticism of maintenance decision in theory and practice is also aimed at the excessive application rate of maintenance decision caused by the abuse of power by the review authority,not the decision itself.Therefore,it is necessary to perfect the maintenance decision from the review body and externalsupervision,so that the maintenance decision can be applied in accordance with the requirements of the laws and regulations.The rejection decision is a new type of review decision in the Implementation Regulations of the Administrative Review Law.From legislative background,it has sufficient theoretical basis and practical needs,but it is not strictly distinguished.There are still many contradictions in the application,regulation and effect of the review.In the reconstruction of rejecting decision,a distinction should be made between a rejected application and a rejected decision.The essential difference between the two is whether the review body has the review authority.The decision to reject the application can only be applied to the case where the respondent’s form of inaction does not constitute a failure to perform his duties.For the case where the respondent has performed his duties before acceptance,the review object has been changed according to the principle of comprehensive review.For the review of administrative acts,it is not essentially one of the administrative review decisions studied in this article,and its scope of application should distinguish whether it meets the substantive criteria and directly applies the rejecting application that does not meet the substantive acceptance criteria;if it does not meet the formal acceptance criteria,the applicant shall be given the opportunity to correct it before judging.A negative administrative review decision is a negation of the object under review,thereby making a review decision with clear rights and obligations in order to correct illegal or improper administrative actions.In the current legal norms,the negative administrative review decision specifically includes five kinds of decision:revocation decision,change decision,re-decision,execution decision,and confirmation of invalid decision.The provisions of Administrative Review Law on implementing decisions are relatively simple.More than 140 laws and regulations have detailed the rules,but they have not followed a unified standard.By analyzing the legal norms and typical cases of execution decisions,the current scope of application,the object of review,the choice of ruling method,and the determination of the time limit are confusing.The application of the order to perform the decision should be limited to the respondent’s form of inaction.The standard of the respondent’s obligations should include the obligations of acts caused by other aspectsin addition to the duties clearly specified in the law.The content of the examination should be carried out from four aspects: whether the respondent has any administrative inaction,whether there is a certain performance obligation,whether there is a reason for inaction,and whether there is still a need to perform.Execution decisions should establish the basic principles of substantive rulings and supplementary procedural rulings.At the same time,a shorter period of performance should be established.In special cases,the period of time in the single law regulations should be applied.From the analysis of the legal norms of change decisions and the investigation of typical cases,it is the deviation of legislative logic and the alienation of practice that has led to a downward trend in the application rate of change decisions.In order to reflect the priority of the change decision in the negative decisions,the change decision and the revocation decision should not be separated in the bottom clause of the negative decisions,but in three specific situations it should be cleared: First,when there is only an unreasonable situation in an administrative act;second,there is only an illegal situation where the law is wrongly applied in an administrative act;and third,in the administrative act based on the application,there is an illegal act in which the respondent’s behavior is unclear.For other illegal situations,the reviewing authority should be given discretion to apply the change decision,and exceptions to adverse changes should be prohibited.Ordering decision is not only a reflection of the legal effect of the revocation decision,but also an urgent practical need,which should be an exception to the changing decision.Ordering decision can only be attached to the revocation decision,and it can still be applied when the respondent fails to provide evidence to prove the legality of its actions.In many areas,there is no room for discretion in ordering decision.If the administrative action for which review is applied is to allow the applicant to perform its legal obligations,determine the applicant’s uncertain legal relationship,and increase the applicant’s rights,the revocation decision at this time shall be accompanied by an order to make another decision.When the reconsidered act is merely sanctioned for the applicant,the specific case and discretion of the review agency are required.The principle of prohibiting adverse changes should also be introduced in orderingre-decisions,and exceptions need to exist.Responsibility of the respondent belongs to the review organ who made the decision The review organ has the right and obligation to review the legality.Affirmation of invalidation is currently only stipulated in lower level legal norms.With the development of the theory of invalid administrative actions,it is necessary to add a comprehensive system of affirmation of invalidation in law.In the construction of the system,some issues can refer to the confirmation of invalidation judgment in administrative litigation.As for the burden of proof,the distribution is different in different review periods,but in essence,the applicant proves the existence of significant and obvious faults.The current administrative review system establishes the central position of the revocation decision in the negative decisions but it has reached no consensus.As a result,the revocation decision does not follow the unified comprehensive review principle in the application.There is no unified view of effectiveness.With the rise of the welfare state,the central position of separate revocation decisions should be changed substantially,and they shall be in a complementary position.The application of the revocation decision must implement the principle of comprehensive review,and its scope of application naturally needs to be reduced.Generally speaking,in the negative decision,the order to perform is directed to inaction,while the change decision,the order to remake the decision,the decision to confirm the invalidation,and the decision to cancel are pointed to the administrative act.At the same time,the decision to change and the order to remake should be applied preferentially to the revocation decision.In the order to perform the decision and the remade decision,the review agency should make a detailed substantive ruling.The neutral review decision separates the legality of the object from its legal effect,which only judges its illegality,does not make any evaluation of its legal effect.For both the applicant and the respondent,there are positive and negative sides.It is relatively simple in law to confirm the illegal decision.In the process of refining the lower-level legal norms,it does not follow a universal standard,which leads to a trend of expanding its application.There are two different types in confirmation of illegal decisions in practice.Confirmation of illegal decisions is a substitute for other review decisions,inother words,situation decisions and other dimensions.Therefore,the law should reconfirm the illegal decision.First of all,it should be composed of two different types from the classification.One is the illegal decision—as a situation decision,and the other is the normal decision review.Their theoretical basis and application are different.To confirm an illegal decision,as a situation decision does not have a unified and clear object,because it is a substitute for other review decisions.Considering more factors outside the case,the review body needs to analyze it in specific ways.As a normal review decision,the key to distinguishing between an illegal decision,a revocation decision,a change decision,and other decisions is not the illegal situation of the administrative act,but the distinction between the type and effectiveness of the administrative act.It should be named separately from the provisions.Specific applicable situations include inaction,administrative actions that no longer exist,and administrative actions that have no revocation.In short,the administrative review body must implement the principle of comprehensive review in selecting and applying the administrative review,and it must have a clear identification of the various situations before it can apply a more reasonable review decision.The third level is the study of the alternative settlement of administrative review decisions,including the system for withdrawing applications,the mediation system and the settlement system.These three systems,along with the administrative review decision,constitute the last method of the review system.However,the purpose of these three systems is to promote the function of administrative review and resolves administrative disputes,but ignore the fundamental purpose of the administrative review system and other two guiding functions.In the legalization of the administrative review system,the case could be closed in the form of an administrative review decision,reducing the application of alternative closing methods.Judging from the legal norms and practice of withdrawing an application,the basic idea is that it does not restrict the applicant’s right to withdraw.In the rule of law,the applicant’s right of withdrawal should be substantially restricted.In addition to the restrictions of the applicant’s right to withdraw,the substantial restrictions canbe divided into two aspects: a clear scope of application and a strict right of approval.The application for withdrawal of review can be divided into four specific types: first,the original administrative act was legal,and the applicant mistakenly considered it illegal and filed a review;second,the original administrative act was illegal,but the respondent has changed its Illegal administrative actions;Third,the slight violation of the original administrative action has no practical impact on the rights and obligations of the applicant;Fourth,the applicant mistakenly believes that the respondent has failed to perform its legal duties or has performed its duties before or during the review process.The criteria for the substantive examination of the applicant’s application for review should be divided into two cases: the review standard for the applicant’s approval of the original or the changed administrative action.The mediation system has gone through three phases in the legal norms: forbidden,ignored,and affirmative mediation.There is still no uniform and clear stipulation in the current legal norms regarding the scope,time limit and effectiveness of mediation agreements.In practice,formal mediation and substantive mediation were formed,completely overriding the provisions on the scope of mediation.To examine the connotation of the mediation system,a mediation procedure system based on the mediation procedure,and administrative review decision as the final result should be constructed.By examining the legislative background of the reconciliation system,it can be found that the reconciliation system is essentially a specific system that is separated from the revocation application system.According to the legal and normative analysis of the settlement system,it can be seen that the spirit is that the respondent promises to change the original administrative action.The applicant accepts its commitment and will not suit the original administrative action.Under this condition,the review agency will no longer review whether the original administrative action is legal and reasonable and terminate the review process.In the investigation of typical cases,there is no settlement case,which is ultimately applied in the same way as the application system for withdrawal and the mediation.There is no need for administrative review and reconciliation system.The final alternative method should only be the withdrawal of the application,and there are restrictions onthe applicable scope,so that the administrative review system basically ends in the form of review decisions.As a remedial administrative act,the most fundamental purpose of administrative review decision is to correct illegal or improper administrative acts,ensure the implementation of laws and regulations,resolve administrative disputes,and supervise powers and remedies.The review agency must adhere to the principle of comprehensive review,find out the various situations of the object of review,conduct administrative review decisions with clear rights and obligations,and minimize the application of alternative settlement methods.At this time,it is particularly important to establish a more comprehensive administrative review decision system through laws.