Study On Links Between Administrative Reconsideration And Administrative Litigation

Administrative reconsideration and administrative litigation are the legal systems that solve administrative disputes,they should be the main way to resolve disputes,however,there are more and more petition cases in recent years,in the situation of sovling administrative contradictions, petition cases are the most,litigation cases are more,reconsideration cases are the least. legal systems can not have effects,realistic dilemma forced us to ponder current systems, when two laws will be improved,the followings should be considered,firstly,on the basis of reviewing the location of two systems seriously, the angle will be to show theirs advantages,the purpose will be to protect litigants,rights and interests. Secondly,we should change the way to amend laws,when building the links between administrative reconsideration and administrative litigation,the route of modifying the two laws at the same time will be chosen.The links in this paper include three aspects,link of function,link of procedures,link of substance. Whether there are links between administrative reconsideration and administrative litigation,it is related to the improvement of theoretical systems for administrative reconsideration and administrative litigation,it is useful for theoretical systems of the big administrative relief, these links are beneficial to system constructions,it is good for making use of resources of resolving disputes wisely. In order to consensuses on links between theoretical circles and substantive departments,on the one hand,the theoretical basis is very important,such as decentralized theory,power restriction theory,accusing right doctrine,judicial final decision theory. O n the other hand,analyzing cases is essential too. We can learn a lot from foreign countries or areas, it has offered an important reference through studying features of relationships between administrative reconsideration and administrative litigation,and probing determining factors on links. There are a lot of questions on links between administrative reconsideration and administrative litigation now,for example,the disjointed of function, the troubles on the link of procedures,the serious gap of provisions. Based on these theories and current situations,there are three ways to correct, firstly, the link of function, as emphasizing on solving administrative disputes,the diversification of functions should be paid attention to,the function of administrative reconsideration should stress individual character;Secondly,links of procedures,on the one hand,the procedure mode of application and prosecution,pepole may choose any other ways between administrative reconsideration and administrative litigation at most of time,the provisions need to be united,the standards that people must apply for administrative reconsideration before prosecution need defining,going out of the wrong understanding about the prereconsideration,under the premise of adhering to judicial final decision principles,we should cancel the provisions of relative finality,and the standards of absolute finality need to be defined. on the other hand, the links of trial proceedings are valuable,the following measures may be taken,different standards should be built according to different examining procedure of administrative reconsideration, the improvement of administrative procedures will be done by trial standards of administrative litigation.Thirdly,there are some specific suggestions on links of substance. First of all,the ways to links of scopes of the administrative cases. Administrative action should be used,certainly,the effect have to be paid attention to after making use of the concept. Under the premise of consistency about scopes of the administrative cases,administrative reconsideration may keep distinguishing features, for example, internal behavior,discretionary behavior, final award behavior. Next,the countermeasures on qualifications of litigants,the disconnection should be solved,and the advantages and disadvantages must be learned about or demonstrated. O nce again,seeking common grounds on the trial standards,there are some concepts which need defined,such as the relations between the abuse of power and the beyond the terms of reference,the relations between legal procedures and due process. Compared with administrative litigation,administrative reconsideration has different demands on investigating administrative normative documents and reasonable questions. Finally,the suggestions on links of applying for laws. C larifying the difference of applying for laws in enforcement and administrative relief,understanding correctly the scopes of legal sources about administrative law, uniting the provision, endowing courts the power of examining administrative regulations,norm and documents.all in all,the modification of administrative reconsideration law and administrative litigation law should not be done alone after chinese legal systems have been built,in the frame of administrative relief act,it is the proper meaning of building the socialist rule of law system to integrate the resources of solving conflicts,and then to achieve the links among administrative relif acts.