The Study On The Relationship Of The Administrative Reconsideration And The Administrative Litigation

The administrative law is the product of the democracy and legal system in the modern times. The purpose of the administrative law is satisfying and controlling the administrative power, avoiding its dilation,infringements and destructiveness, protecting and defending the rights and interests of the organized system and the people. If the rights and interests of the people and the organized system were being infringed by the administration, they can adopt two ways to solved: the administrate way and the judiciary way .Namely the administrative reconsideration and the administrative Litigation. They have the intrinsic difference and the inseparable relationship, and they have respective superiority .Their purposes are to protect and defend the rights and interests of the organized system and the people. So the administrative reconsideration and the administrative litigation was a successive legal procedure. The administrative reconsideration is the first protective screen, and the administrative litigation is the last protective screen. Designing their successive mode must to develop their each superiority, to achieve their objective and function. Our country have four modes: unrestrained choice,must past through the reconsideration,direct prosecution,reconsideration to finished .The mode is to be short of unified standard and not to comply with the principle of judicial final settlement. It can not settle the dispute well, and can not defend the rights and interests of the organized system and the people well. It also can cause the erosion between the administrative power and the jurisdiction. Foreign scholars reach different conclusions, the America follows the mode of "must past through the reconsideration", points out that, the dispute should be solved by the reconsideration in the first instance and then just can go to court. The Germany follows the mode of "determined by the gist of a case". Point out that, different cases should suit different forms. The France follows the mode of the "unrestrained choice" .to authorizes the people the right of choice. Although different countries follow different modes, they have the same regular patterns, just set up definite standard, protect and defend the rights and interests of the organized system and the people well, develop the respective superiority of the administration and the jurisdiction, guarantee the principle of judicial final settlement, and so on.Our country should draw on the experience of other countries, cancel the mode of the reconsideration to finished gradually, set up the mode of the must past through the reconsideration again, limit the mode of the direct prosecution strictly, try our best to follow the mode of the unrestrained choice, supply an adequate remedial measure to the people. The administrative reconsideration and the administrative litigation have a lot of conflicts in the legislation and the practice. We should solve the conflicts, and make them to connect perfectly. The article reveals the theory of the interrelationship, bring up a new modes starting from the present situation, advanced the own attitude and advice aiming at this problems.