Study On The Administrative Handling Mechanism Of Complaints And Reports

In the 19 th national congress of the CPC,General Secretary Xi Jinping put forward the idea of building a social governance pattern with common construction,governance and sharing,strengthening the construction of social governance system,and improving the social governance system of Party committee leadership,government responsibility,social coordination,public participation and rule of law protection.In order to create this social governance pattern,Premier Li Keqiang stressed at the executive meeting of the State Council in July 2018 that "the government service platform should unblock the online consultation and complaint channels,timely feed back the problems reflected by the masses and market subjects and solve them,so that a good social credit system will be gradually established".In September 2019,the State Council issued the guiding opinions on strengthening and standardizing the in process and post event supervision(GF [2019] No.18),which proposed to build a coordinated supervision pattern,unblock the channels of mass supervision,and integrate and optimize the functions of the government complaints and reports platform.In recent years,the administrative handling mechanism of complaints and reports in China has developed rapidly,the channels of complaints and reports have been gradually expanded and convenient,the handling procedures in variousadministrative fields have been gradually standardized,and the rights guarantee mechanism has been gradually established.The addition of social subjects has enhanced the ability of administrative handling.The mutual cooperation between complaints and reports and major administrative enforcement activities has become a way to improve the efficiency of administrative enforcement.However,although the administrative handling mechanism of complaints and reports has made some progress,it also presents a contradictory development status.The contradiction between the broad legislative requirements and the limited administrative law enforcement ability,the contradiction between the expansion of the scope of application and the limitation of complaints and reports,the contradiction between the encouragement and limitation of the right to complain and reports,and the contradiction between the affirmation and negation of the value of complaints and reports hinder or even alienate the development of the administrative handling mechanism of complaints and reports.From the current situation,it is still difficult for the administrative mechanism to operate effectively.The number of complaints and reports has increased in an all-round way,and has spread from the traditional consumer field and environmental protection field to the whole administrative field.And the legal effect of handling complaints and reports is not satisfactory to the public,and a large number of complaints and reports disputes rush to the court.In addition,the multi-channel introduction of the case acceptance mechanism and the lack of a unified standard complaints and reports processing process,resulting in the complaint and report administrative processing mechanism not only fails to achieve the ideal effect of social governance,but also breeds more disputes.The reasons for this situation can be analyzed from both theoretical and practical aspects.In theory,the term complaints and reports is common in all kinds of legal norms,but there is no law to define the concept of complaint reporting.Although both administrative and judicial organs have given the definition of the concept of complaints and reports,there are great differences.Not only in the concept,but also in the function of complaint reporting.The theory of government supervisionadvocates that complaints and reports is a way for citizens to supervise the government,and the administrative handling mechanism of complaints and reports should focus on protecting citizens' supervision power;the theory of administrative efficiency believes that complaints and reports is a way for citizens to improve the efficiency of law enforcement,which also derives the view of "complaint reporting tool theory",completely denying the complaints and reports person as a participant in the handling mechanism;the theory of administrative relief thinks the concept of complaint and report should be distinguished,and the relief function of complaint to citizens' private rights should be recognized;while the theory of government service thinks that the handling of complaint and report by the government is the social service that the government should provide,but it excessively aggravates the obligation of one side of the administrative organ.With the development of these theories,the boundary of complaints and reports handling is increasingly blurred,and the administrative mechanism of complaints and reports handling is also confused with other mechanisms.And the above problems are all attributed to whether complaint reporting is a right and what kind of right it is.However,at present,there are affirmative rights,negative rights and affirmative rights for the right to complain and report.This leads to the lack of unified theoretical guidance for the development of the administrative handling mechanism of complaints and reports.On the practical level,complaints and reports gradually began to "alienate",from a "participation" mechanism to a "confrontation" mechanism.On the one hand,the administrative organ hopes to improve the efficiency of law enforcement by means of complaints and reports,on the other hand,it regards the complaints and reports person as a "tool" for the start of authority.And citizens also turn complaint reporting into a "tool" to safeguard private rights and interests,even to seek illegal interests or achieve illegal purposes.Complaints and reports gradually move towards "confrontation",and even have an impact on the legitimacy of the system.With the development of network information technology,the administrative organ has become the main subject of the judgment of violating.The administrative handlingmechanism of complaints and reports is the main channel for citizens to feedback illegal information.The collection of a large number of information brings severe challenges to the traditional law enforcement means of administrative organs.Therefore,it is necessary to seek corresponding solutions in the improvement of the administrative handling mechanism of complaints and reports.In the view of rights protection,the administrative mechanism of complaints and reports must clarify what rights the complaints and reports person should enjoy in the administrative mechanism of complaint and report.However,at present,theory and practice have confused the administrative report from Article 41 of the Constitution and the complaint report from article 2.3 of the constitution.This complaint and report from the third paragraph of Article 2 of the constitution refers to any citizen,legal person or social organization that,in order to promote the administration of the government in accordance with the law,takes other citizens,legal persons or social organizations as the object to report illegal acts to the administrative organ.The right to complain and report is regulated by specific laws.Citizens have the subjective public right to complain and report to the administrative organ.This is a kind of positive right,which has the attribute of participation and cooperation.The obligation corresponding to this right is the legal duty of the administrative organ to handle complaints and reports.Through the type of administrative behavior,the complaints and reports handling behavior can be divided into administrative response behavior and administrative processing behavior,and the administrative response behavior can be further divided into procedural response behavior and substantive response behavior.The procedural response behavior indicates whether the administrative organ accepts the matters reflected by the complaints and reports person,which has an impact on the right of the complainant to obtain the procedural response of the administrative organ.The substantive response behavior shows that the administrative organ feeds back the verification and handling results of the reflected matters to the complaints and reports person,who has an impact on the exercise of the right to know the results of the complaints and reports.The administrativehandling behavior indicates that the administrative organ has handled the matters reflected by the complaints and reports person.However,because the right to complain and report itself is a right to participate in cooperation,it does not have the meaning of replacing the administrative organ to exercise its power.Therefore,the administrative handling behavior does not have a substantial impact on the right to complaints and reports person.However,whether it has an impact on the other legitimate rights and interests of the complaints and reports person should be judged according to the specific content of the administrative treatment.Through the theory of administrative process,this paper comprehensively and dynamically examines the handling behavior of complaints and reports,which also includes the process diversion behavior and investigation behavior.The act of diversion determines whether the matters reflected in the complaints and reports can be handled by the right administrative organ,while the act of investigation determines the correctness of the administrative handling.The wrong shunt behavior and investigation behavior will inevitably affect the correctness of administrative handling behavior,thus affecting the right of the complainants to know the results of the exercise of the right to complain.In addition,any substantive response in the absence of administrative investigation is lack of theoretical and factual basis,which is equivalent to the result of a case without any evidence.Accordingly,the right to request the administrative organ to perform the investigation duty has become the necessary content to realize the right to complain and report.In the view of public participation,the administrative handling mechanism of complaints and reports should have a wide range of participation.Public participation in administrative law should include three levels: first,macro public participation in administrative law.When using the state administrative power to manage the state and social affairs,the administrative organ should widely absorb the private participation in various administrative processes,recognize that the private subject has a certain subject status in the administration,and construct its administrative mechanism and system of administrative consultation,dialogue and interaction;secondly,the medium-sized public participation in the administrative law.medium-sized public participation refers to the public participation under the breakthrough of traditional administrative behavior mode,which is typical of the administrative contract formed by the agreement of both parties;thirdly,micro public participation in administrative law.Micro public participation refers to the process in which the public participates in various specific administrative actions.And the administrative handling mechanism of complaints and reports just fit these three levels of participation.And the most important is how to construct the interaction and dialogue between the right of complaint and report and the administrative power under the micro public participation,in order to achieve the goal and task of the operation of the administrative power through the protection of the right of complaint and report.In addition,the administrative mechanism of complaints and reports in the social governance system needs the participation of social subjects.This kind of participation can be embodied in the following two aspects: first,social autonomy itself is a manifestation of governance effect.Through the way of social convention,we can promote citizens to understand and abide by the law,which naturally reduces the generation of illegal acts and social disputes,so as to achieve the effect of social governance,and also reduces the number of complaints and reports;secondly,the social subject will be the help of administrative organs in handling complaints and reports.In the view of substantive settlement of disputes,the administrative handling mechanism of complaints and reports must effectively resolve social disputes.The substantive dispute resolution effect of complaint handling is reflected in two aspects:first,the handling of illegal acts has the function of maintaining social public welfare and preventing disputes from expanding.Therefore,complaints and reports handling itself is a substantial dispute resolution mechanism;secondly,the civil disputes intertwined with complaint and report reflect the social dispute attributes closely related to administration.Therefore,we should set up additional substantive dispute resolution mechanism to solve civil disputes.In the process of exercising the right tocomplain and report,if these civil disputes are not dealt with substantively,then citizens need to turn to the judicial organs again for relief.This will not only increase the cost of citizens' rights protection,but also increase the "Prejudice" and "emotion" of citizens in the process of exercising the right to complain and report,which in turn weakens citizens' satisfaction with administrative handling behavior.Through the analysis of the legal norms of complaints and reports,there are 36 laws in China that stipulate the terms of complaints and reports.Although there are various forms of provisions,they generally stipulate that complaints and reports are a right.Under the laws,including administrative regulations,departmental regulations,local regulations,local regulations and normative documents,there are relevant provisions concerning complaints and reports.Thus formed the department management type legislation pattern and the unified management type legislation pattern.The department management type legislation pattern has a clear legal basis,which is conducive to the formation of professional management,but there are also problems such as the lack of unified standards,the lack of interaction between departments,increasing the cost of safeguarding rights and so on.While the unified management type legislation pattern relies on the first level government platform,improves the service concept,and makes a beneficial discussion on the construction of the unified system,but there are also problems such as the lack of the basis of superior law,arbitrary legislation and increasing the burden of administrative organs.In these types,through the abstract summary,the administrative handling mechanism of complaint and report generally includes the identification standard,diversion standard and handling procedure provisions of the administrative handling mechanism of complaint and report.Identification standards can help administrative organs quickly identify the standards of complaint reporting.The standard of diversion can help administrative organs to correctly accept complaints and reports within the scope of their duties.And the handling procedure is the regulation of the handling process of administrative organ's complaint and report.These common procedures establish the basic institutional framework for the administrative handlingmechanism of complaints and reports.And in the field of consumer protection,environmental protection and research integrity management,these three representative areas,also formed some special experience.The participation mechanism of social subjects,the construction of high-level unified supervision platform and the embeddedness of administrative mediation and dispute resolution mechanism all provide useful reference for the improvement of the administrative handling mechanism of complaints and reports.To sum up,in order to give full play to the functions of the administrative handling mechanism of complaint and report in rights protection,public participation and dispute resolution,we should build a mechanism of administrative handling of complaints and reports that guarantees participation.Security participation refers to the social governance effect of promoting participation by security and participating in the handling of complaints and reports.The theory of safeguarding participation has the following meanings: first,to regulate the rights and obligations of participants.The current legislative model and theoretical system are mainly based on one party's obligations or internal procedures of the administrative organ.The rights enjoyed by the complaints and reports person in the process of handling are not clear,and they are denied the right to participate in the judicial process.Therefore,it should be clear about the right of the complaints and reports person to reply to the request in the procedure,the right to know the exercise of the right and the right to judicial relief.This is the most basic guarantee of participation status;second,highlight the nature of the right to complaints and reports as the right to participate in the management of the constitution,and make it clear that the complainants have the right to request the administrative organs to check the illegal acts according to law.As a specific form of the right to participate in the management of the constitution,the right to complaints and reports should have a higher degree of participation and public welfare,which is different from the right to participate in the general administrative procedures.Although this right does not require the administrative organ to make a specific investigation,its participation and supervision of the investigation results should beguaranteed.It can be reflected in the fact that the reply content of the administrative organ must include the explanation of the investigation facts,and that the complaints and reports person has the right to challenge the administrative investigation with counter evidence;thirdly,promote the deep participation of the complaints and reports person and others.The complaints and reports person is not only the initiator of administrative procedure,but also the object of administrative treatment.For the civil disputes and disputes between them,we should actively provide mechanisms for substantive dispute resolution,reflecting the concern and balance for the interests of the participants.Fourthly,we should expand the scope of the participants,widely absorb the participation of the social subjects,cultivate the participation ability of the social subjects,and ultimately give back to the autonomy ability of the social subjects,so as to fundamentally reduce the occurrence of the disputes and the complaints and reports.Accordingly,in the specific construction of the administrative handling mechanism of complaints and reports,we should build the participation mechanism of social subjects,the settlement mechanism of civil disputes and the unified acceptance platform,and provide external relief guarantee with justice,so as to promote the construction of the administrative handling mechanism of complaints and reports.