The Research On The Problem Of Judiciary Of Administrative Reconsideration

Since the establishment of the administrative reconsideration system in China, it has played an important role in the solution of the administrative dispute, correcting improper and illegal administrative action and relief of administrative relative person. But with the implementation of the system of administrative reconsideration, problems begin to gradually appear. It mainly includes messy jurisdiction, less specialized workers, not neutral subject, no procedure, not transparent process and so on.To solve problems in practice and better play the role of the administrative reconsideration system, academic circles raised the theory of judicial reform on administrative reconsideration.After more than ten years development, it has become a mainstream theory of the reform of the administrative reconsideration, and affects the practice directly.This reform trends fundamentally overturned the nature and orientation of the administrative reconsideration system. It believes that the nature of the administrative reconsideration system is "quasi-judicial", and the orientation of the system shifts from "inner supervision and correction" to "right remedy". The nature and orientation has lost independent value of administrative reconsideration and its biggest characteristics: efficiency and professional. Therefore, administrative reconsideration runs to extreme, becoming similar with the administrative litigation with same form and function.At the same time, in system construction, the theory puts forward a series of reform measures according to administrative reconsideration problems. But some of these measures do not consider the reality of our country and the practical operation of the executive branch. Some slower the process of administrative reconsideration, causing unnecessary waste of resources. Others are easy to cause the administrative organs’ contradictions. So there are different levels of problems. None of them are entirely appropriate.The main reason of the appearance of these problems lies in the process of logical deduction of the whole theory of the judiciary of administrative reconsideration. It is suspected of proving itself and arguing in a circle in reasoning directions. It comes up with building system firstly, then reasoning theoretical basis with system. That leads to the absence of its grounds except "theory". However, theoretical basis is none other than the precondition of system building. It leads to put the cart before the horse in reasoning order. Meanwhile, each step of the review of specific reasoning process and the proposal of the judiciary of administrative reconsideration also has some problems.According to the research and analysis on the mainstream direction reform of the judiciary of administrative reconsideration, the author finally puts forward that the reform of the system of administrative reconsideration should still insist on administrative, aiming at efficiency, taking account of fairness, locating on the inner supervision and correction.At the same time we should indeed admit the impartiality of the system, adopting reform orientation of the judiciary of administrative reconsideration alternatively. Measures can be taken on the basis of the reform mainly include:governments at the county level shall establish a unified administrative review committee, building system of expert consultation and personnel training, under the premise of adhering to the administrative reconsideration subject at higher levels rather than neutral organ, building system of accountability system and the explain justification, so as to improve the fairness of administrative reconsideration system.