Reconstruction Of The Administrative Reconsideration System

As one of important legal system in China, administrative reconsideration system is obviously attached less importance than the system of administrative litigation possibly due to wrongful location and insufficient recognition. Therefore, this paper attempts to take administrative reconsideration as an important dispute-settlement mechanism from the perspective of settlement of administrative disputes, analyze the elementary theories and design the system of administrative reconsideration system from a new viewpoint and reconstruct or perfect some specific systems.The introduction part begins with current awkward situation of administrative reconsideration system in China, then analyzes the causes (wrongful location, irrational arrangement and defective system designing) and expounds the necessity for reconstruction, finally points out that it has been mature to reconstruct the system because of such factors as ongoing rethinking at theoretical level, pressing requirements of administrative reconsideration practices, bettered environment for rule of law and gradual improvements in judicial reform.Chapter one, "a new perspective: administrative dispute-settlement mechanism", begins with disputes, reviews the origin, value and functions of social disputes and analyzes various dispute-settlement models especially plural dispute-settlement mechanism. Then, it probes into the source, concept, characteristics and categories of administrative disputes, introduces currently chosen administrative dispute-settlement mechanism and expounds the close relationship between settling administrative disputes through reconsideration system and division of power, protection of rights and rule of law and its positive values.Chapter two, "elementary theories of administrative reconsideration", holds that administrative reconsideration is a legal system through which administrative organs settle administrative disputes and the nature of administrative reconsideration is not a judicial or quasi-judicial but an administrative system and questions the suggestion that turn administrative reconsideration into a judicial system. Furthermore, this chapter points out that the core function of administrative reconsideration is to settle disputes and its reflection function is to supervise and arrange, its purpose is to protect rights and offer remedies. Finally, the author insists that when choosing between efficiency and justice, the administrative reconsideration should increase the proportion of justice while guaranteeing efficiency, attach more importance to substantial justice than formal one, protect freedoms on the basis of maintaining order and stress "ordered freedom".Chapter three, "administrative reconsideration organic mechanism", focusing on the authority of administrative reconsideration, discusses in the first place its nature, characteristics and contents, and then analyzes its allocation in an administrative organ and among different organs. The former is so-called jurisdictional system and to decidejurisdiction should stick to the standard of primacy of settlement of administrative disputes and such principles as legal prescription, unification, coordination, law cost;the latter is organizing configuration of administrative reconsideration, including designing of organization, personnel. Furthermore, This part using the theory of bureaucratic to expound relative principles such as specialization, integration of function, legal prescription, exact and clear division of power, standard of setting up organizations such as independence, profession and unification, the working approach of collegial and leading cadre's responsibility system and the role of individuals in reconsideration organs. Finally, after comparing relative situation in China and abroad, this part offers suggestions on reconstruction or perfection of jurisdictional system, designing of organizations and personnel equipment.Chapter four, "theories of administrative reconsideration procedure", holds that the value of reconsideration procedure is administrative justice, which is a organic combination of efficiency and justice and can be achieved through neutralism, formal reorganization of disputed facts, harmonizing public and private interests and strictly and clear legal responsibilities;reconsideration procedure plays a vital role either in administrative procedures or compared to administrative litigation;reconsideration procedure is positive in settling administrative disputes, promoting administrative rule of law and developing reconsideration system;reconsideration procedure should stick to principles such as equality, fairness, law cost and justness and reconstruction of procedure should be based on relative ideas such as dignity of human nature, procedural pluralism, primacy of judicial decision and analysis of cost and profit.Chapter five, "systems of administrative reconsideration procedure", looks on reconsideration procedure as continual process in time and development stages in space referring to course theory of administrative acts while summarizing and organizing reconsideration systems in other States and regions. In the first place, this part analyzes subject and object of procedure and suggests that the object, the scope of accepting cases, should be enlarged to cover abstract and inner administrative activities, administrative adjudication, confirmation and other disputable administrative activities, and the subject discusses issues concerning application, the party against whom an application is files and the third party;then, it analyzes the starting or initiation of the procedure and points out that application for reconsideration only starts the reconsideration procedure and the latter can be initiated only when application meets legally prescribed requirements and is accepted and thus original administrative decision can be suspended;examination proceeding is the most important stage of reconsideration procedure and current examination approaches such as written examination and listening to complaints should be perfected and public hearing be introduced;targets of examination, activities of respective parties in specific administrative disputes, should not be limited to administrative activities andconespondingly the scope of examination should be decided according to the principle of complete review and not be constrained by the scope defined in application and activity scope of the party against whom the application is filed in order to thoroughly and completely settle disputes. Moreover, this part suggests that some necessary reconsideration forms such as confirming decision, ordering to rectify, rejecting application be introduced, analyzes the problem that when reconsideration decision can turn bad to worse and conducts an initial research into the effectiveness of reconsideration decision in and out of reconsideration procedure and its enforcement. Finally, the author suggests that current provision regarding legal responsibility be perfected, re-examination proceeding be set up on the basis of supervision and remedy value of administrative reconsideration procedure and briefly discusses relative issues relating to supervision of administrative litigation.The conclusion restates that the reconsideration is an administrative system, which is better for realization of social justice and recognizes that how to keep positive exchange between administrative litigation and reconsideration is another both empirically and theoretically important project.