Research On The Connection Between Administrative Reconsideration And Administrative Litigation

With the revision of the Administrative Procedure Law in 2014,the Administrative Reconsideration Law lags far behind the Administrative Procedure Law,and there is a lot of disconnection between the two.In the context of the urgent need to amend the Administrative Reconsideration Law,it is of great significance to discuss the connection between administrative reconsideration and administrative litigation.This article analyzes the connection between the entity and the program from two aspects.First,analyze the functional positioning of administrative reconsideration and administrative litigation.Functional positioning is the basis for a better connection between the two.In terms of functional positioning,administrative reconsideration should take the resolution of administrative disputes as the primary purpose,be "quasi-judicial",and play its role of internal supervision and error correction.Through the analysis of the extraterritorial administrative reconsideration system and its connection with administrative litigation,there are many extraterritorial experiences that we can learn from:the choice of the system should conform to the national conditions,guarantee the rights and relief of citizens,give play to the professionalism and irreplaceability of administrative reconsideration,and adhere to the judicial system.The ultimate principle.Next,analyze the problems existing in the convergence of the two,the substantive aspect mainly analyzes from four aspects:the scope of the case,the qualifications of the parties,the review standards,and the application of law.On this basis,corresponding suggestions for improvement were put forward:the concept of administrative action should be introduced in the scope of the case,and the administrative agreement should also be used as the scope of administrative reconsideration,so that the scope of administrative reconsideration and administrative litigation should be consistent;in terms of the connection between the parties,the applicant It should be consistent with the qualifications of the plaintiff,the respondent,the defendant,and the third party.The administrative reconsideration should adopt the theory of "interested person" in administrative litigation to determine the qualifications of the applicant.The qualifications of several specific respondents,such as administrative actions made with internal institutions,should be consistent with those of the defendant.Administrative reconsideration should be the same as administrative litigation in determining the qualifications of the third party,using two types of interest in the same sued administrative action and interest in the outcome of the case.On the issue of the reconsideration agency as the defendant,it is believed that the reconsideration agency should be positioned as a quasi-judicial act and should not be treated as a co-defendant.Administrative reconsideration is significantly different from administrative litigation in terms of review standards.The new "Administrative Litigation Law" adds obvious improper provisions,but it does not mean that administrative litigation has increased the review of reasonableness.Administrative litigation still adheres to the principle of legality review.In connection with the review standard of the author,the advantages of administrative reconsideration should be used to strengthen the intensity of the rationality review in the administrative reconsideration.In terms of law application,judicial review of rules should be increased.In administrative litigation,rules are in the status of "reference application".In fact,judicial organs are granted the right to judicial review of rules,and regulatory documents are reviewed and reviewed as informal sources of law.Choose to apply.As the "Administrative Reconsideration Law" circumvents the application of law,legislation should be adopted to unify the application of law in administrative reconsideration and administrative litigation,and regulations and normative documents should be reviewed and applied.In the connection of the two procedures,the principle of free choice should be adhered to,the pre-reconsideration should be an exception,and the final reconsideration and the final administrative ruling should be cancelled.Improve the pre-reconsideration system,abolish the right to prescribe reconsideration in rules,and strictly stipulate the establishment standards for pre-reconsideration.