The Reflection And Reconstruction Of The “Double Defendants” System Of Administrative Reconsideration

The system of "double defendants" of administrative reconsideration originated from the phenomenon of "maintaining" prevailing in practice.In maintain "single defendant" period of reconsideration,after the administrative reconsideration agency made the reconsideration decision,if the parties did not recognize it,and could be informed to the people’s court as the original administrative organ,while the administrative reconsideration agency did not subject to judicial review.Therefore,when making a decision,the administrative reconsideration agency preferred to make a maintenance decision to avoid taking litigation risks.In order to change the situation of reconsideration "maintenance meeting",the system of "double defendants" emerged.Since the emergency of this system,many opinions have been proposed about whether it "makes sense" in theory and "works" in practice.Although the "double defendants" system of administrative reconsideration reduces the "high maintenance" situation in the practice of reconsideration to some extent,the reduction does not mean the solution of the problem,and the goal of eliminating the "high maintenance rate" is far from being achieved.In addition,the "double defendants" system also caused new problems,such as the emergence of the "quasi-maintenance" phenomenon,the credibility of administrative reconsideration has been questioned,increasing the burden of reconsideration and litigation.Under the combination of old and new problems,the effect of the "double defendants" system on improving the quality of administrative review is not significant,and the administrative reconsideration agency will still drill the loopholes of the system based on the psychology of seeking advantages and avoiding disadvantages,and has not developed into the "main force" to deal with administrative disputes.The "double defendants" system not only realizes the original intention of the system from the perspective of practical effect,but also cannot be justified at the theoretical level.Not only can "integration" theory not serve as the theoretical basis of the "double defendants" system,but this special co-defendant system also conflicts with the existing administrative theory,which destroys the integrity of the relevant theoretical system.Therefore,it is necessary to make a post-legislative evaluation of the administrative reconsideration "double defendants" and its related system to decide whether to make adjustments or changes.First of all,we should perfect the administrative review system around the goal and function of administrative review.After establishing a more scientific administrative review organization and a more standardized administrative review procedure,the "double defendants" system should be abolished,the defendant rules should be reconstructed,and the original administrative organ should be the defendant in principle.Only when the party who sues the administrative reconsideration agency fails to accept the reconsideration application by the law or fails to make a reconsideration decision can the parties sue the administrative reconsideration agency.In the case of reconsideration inaction,even if the parties sue the original administrative organ and the administrative reconsideration agency together,they shall file the case separately and not be the co-defendant of the same case.But in order to save litigation resources,the trial can be combined and finally judged separately.Other litigation rules related to the defendant rule should also be adjusted,and the administrative reconsideration agency should be made the main force to solve disputes,and realize the parallel of the two dispute solutions.