Research On Final Administrative Reconsideration Discretion

Has experienced ten years of turmoil, China’s administrative legal system is being builtand improved. Since the “administrative procedure law of the People’s Republic ofChina” and the “administrative reconsideration law of the People’s Republic of China”have been promulgated, about the ways of remedies when the citizens’, legal persons’or other organizations’ legitimate rights and interests have been ruined byadministrative organization’s specific administrative acts, lawmakers make manyrelated laws and regulations related to the relief way, one of which is the finaladministrative reconsideration discretion. That is, after administrative reconsideration,even if the administrative relative person refuses to accept a specific administrative act,they have no right to Sue, the court shall not accept the case. Despite it has reasonableaspects, it makes some of the specific administrative acts of administrativeorganization are excluded the judicial review, this is not conducive to theadministrative relative person’s rights protection. For example, in today’s advocacy of“knowledge changes destiny”, if a citizen’s education right is ruined, the finaladministrative reconsideration discretion will be only one relief way, citizens cannotobtain remedy through judicial relief, it’s not comply with the principle of judicial finalcountry under the rule of law. So, it is important to define the final administrativereconsideration discretion, and the sorts of the final administrative reconsiderationdiscretion, the rationality of the final administrative reconsideration discretion. Despiteof the final administrative reconsideration discretion has its rationality, but there doesnot mean there is no the inadequacies in final administrative reconsideration discretion:the final administrative reconsideration discretion against natural justice principle; thefinal administrative reconsideration discretion against principle of judicial final; thefinal administrative reconsideration discretion is likely to cause a administrative organsabuse of public power; the final administrative reconsideration discretion conflict withthe WTO’s dispute settlement mechanism. In this paper, the innovation point is hope toestablish the judicial final principle is given priority to, with general principles of thefinal administrative reconsideration discretion complementary. Area from abroad, soour country should draw lessons from the related system aspects, for example, theUnited States, Britain, France, Germany, Japan and Taiwan area in our country. Perfectthe final administrative reconsideration discretion, to consummate our country administrative law. How to improve, the author thinks that should set clear standard,i.e., highly personal, professional and technical involved political and policy factors.Aim for determine its scope, gradually narrow the scope of the final administrativereconsideration discretion, based on the general principle of judicial final principle.