Study Of China's Administrative Reconsideration Procedure

As an important form of administrative redress system, administrative reconsideration is essentially a procedural system design. However, due to the influence of Chinese traditional legal culture that substantive law is superior to procedure law, the value of administrative reconsideration procedure is not aware by academics and the public. Whether the written legal regulation, or the theory of academic, other entities problems of administrative reconsideration system make place of procedure. At present, the difficulties the Chinese administrative reconsideration system is facing is due to the legal culture and awareness of procedural lacking.Basically, the consummation of China's administrative reconsideration procedure depends on the definiteness of pursuit on its value and for achieving the organic unitization between the pursuit of the substantive value and the formal value. About the substantive value, it primarily should be recognized that the purpose of administrative review procedures is to protect the relief for right and realize the power supervision. Secondly, it should be recognized that the pursuit of the functional value of administrative reconsideration procedure is an effective solution to administrative disputes, and achieve resolving issues. For the formal value, it should be recognized that administrative reconsideration procedure is naturally in pursuit of procedural justice, not only to protect the independence and neutrality of administrative reconsideration subject, but also to meet the the minimum requirements of procedural justice which is participation, equality, rationality and autonomy.By a micro-study of China's administrative reconsideration procedure based on the pursuit of value above-mentioned, whether in the legislative design or operation in practice, there are many drawbacks in China's current administrative reconsideration procedure, such as the non-independence of reconsideration subject, the simplifying mode of trial, lacking of evidence system and withdrawal system, setbacks and single type of reconsideration decisions and so on. The existence of these deficiencies, not only makes the function of relief for right, power supervision and resolution of dispute can not to be realized, but also it has a long way for the realization of procedural justice.The improvement of China's administrative reconsideration procedure should take overseas precedent and practice in Chinese grass-roots as its two frames of reference for reform, guided with relevant value idea, adjust and perfect. Specifically, it should firstly achieve balance between authority and litigant; Second, it should strengthen the independent status of administrative reconsideration subject through establishing administrative reconsideration committee, restricting administrative reconsideration chairpersons'job qualifications and protecting performance of their duties;. Finally, at the rule of procedure, it is necessary to introduce principle of unilateral contact forbidden and establish withdrawal system, protect the applicant's right to appeal, achieve diversification in trial mode, establish hearing system and simplified procedure , and improve the join process between cognizance process and reconsideration decisions, diversify closing procedure and so on.