| With the soaring development of economy, politics and society and deepening reform and opening to the outside world, our country is in a very critical society reforming period at present. In this period, the tendency of the formation of multi-benefit entity is obviously strengthening; all kinds of contradictions and conflicts are gradually being visualized and have formed a latency threatening for the construction of harmony society. Especially in the field of administrative management,in which the administrative powers cover a wide range and their influences on individuals are direct, the conflicts between individual rights and national administrative powers are very striking, and the administrative disputes arising from the administrative powers illegally violating individual lawful rights happen repeatedly. For the sake of relieving and protecting the legal rights and interests of the citizens and checking and balancing the over-powerful administrative powers,our country established the administrative succor legal system in the 1990s,a combination of administrative reconsideration and administrative litigation. This relieving system has played an important role in protecting rights and checking powers, and to some extent it does strengthen the civil rights of our nation and accelerate the process of democratization., In the meantime, however, the legislative unsmooth linking between administrative reconsideration and administrative litigation and the unreasonable design make the administrative reconsideration system subject to failure to achieve its value at a much higher rate. This essay studies the linking modes of administrative reconsideration and administrative litigation. It aims at advocating advanced legal ideology and in turn promoting the formation of highly efficient mechanism of two remedy systems to bring into full play the compound and systematic power, to achieve the ultimate purpose to relieve the right of the other part, effectively harmonizing interest conflicts and easing social conflicts.This article is composed of six sections. Section one is the introduction. This part first points out that after our country put forward the strategic objective of establishing harmonious society,administrative reconsideration as administrative remedy system running for so many years has been given high regard by the Chinese Party Central Committee and the State Council because of its function to solve administrative disputes in the current situation. Secondly, this essay describes and analyses the embarrassment of administrative reconsideration in solving administrative disputes, and it arrives at the conclusion that the efficiency of administrative reconsideration has not been brought into full play. Thirdly, the reasons why the efficiency of administrative reconsideration has not been given full play are comprehensively and profoundly analyzed. One of the key reasons is a lack of scientific combination and cooperation between administrative reconsideration and administrative litigation. Fourthly, the linking modes of administrative reconsideration and administrative litigation of Germany, United States, Japan and our country are simply outlined.Section two discusses the relations between administrative reconsideration and administrative litigation. The precondition of the linking of administrative reconsideration and administrative litigation is that between the two there exists one kind of special relation. The first is to review the relations between the two from a general point of view. Their relations stem from the establishment of the final settlement of the court. Administrative reconsideration is a link of relief in administrative procedure. An administrative act needs to be a final review by a legislative means of administrative litigation in order to maintain the fairness of administrative handling. The second is to review the relations between administrative reconsideration and administrative litigation according to the provision of legislation in our country. The association between them lies in the static line design of remedy procedure. In general, any opposite person for administration can apply for administrative reconsideration according to law when he considers that he is infringed by administrative act. If he disagrees with the result of reconsideration, he can also institute administrative litigation. On the other hand, seen from the operation of dynamic relief mechanism, there will appear substantial linking between administrative reconsideration and administrative litigation when the opposite person for administration applies for administrative reconsideration firstly and then files administrative litigation because of his dissatisfy fact with the administrative reconsideration result. In this part, based on the careful exploration of the relation between administrative reconsideration and administrative litigation, the semantic meaning of their linking mode is also defined.Section three is concerned with the commentary on the linking modes of foreign administrative reconsideration and administrative litigation. This part focuses on the introduction and comparison of Germany, American, and Japanese linking modes of administrative reconsideration and administrative litigation. Germany mode is associated with administrative suit types. According to Law of Federal Administrative Court, dismissal suit and anti-refusal suit occur after administrative reconsideration while the administrative reconsideration is at the opposite person's disposal as for the declaratory judgment and the general paying suit and other types of lawsuit. American mode is based on the principle of exhaustion of administrative relief. As a general rule, the opposite person for administration shall not gain judicial relief of his damage until he fails to be relieved through any administrative procedure. Japanese mode follows the principle of free choice, with the exception of administrative reconsideration preceding administrative litigation. Based on the concrete description of the three countries'administrative reconsideration, administrative litigation and the linking modes, this part gives a commentary summary and generalization of their similarities. On the other hand, this part also makes a comparison and analysis of their differences. A conclusion is then reached that despite the mode of thinking and law cultural traditions, all the modes have striking distinctions in the concrete design and implementation. However, their ultimate goal is to relieve and protect the lawful right of the opposite person for administration to the largest extent. To achieve this, all the modes employ the principle of the final settlement of the court.The fourth section defines and analyses the linking mode between administrative reconsideration and administrative litigation of our country. This part depicts in detail the current legislation concerned in our country and makes a commentary reconsideration of the problems in this field. There are mainly three problems. The first question is over-wide choice, over-simple setting, and the difficulty in the correspondence to the overall system environment and social reality. Secondly, the limiting conditions are set in the arguments concerning tax payment, severely restricting the exercising of right of party. Thirdly, the final award of administrative reconsideration renders parts of administrative acts out of judicial supervision, which is adverse to the relief and protection of national people's rights.Section five illustrates ways to perfect the linking mode of administrative reconsideration and administrative litigation of our country. This part proposes some basic solutions and concrete measures to solve the current problems. This essay concentrates on the theories, reality, and feasibility related to the solving of the current problems and provides sufficient evidence. Some measures to perfect the current system are recommended. The first measure is to incorporate administrative dispute cases connected to the rationality of concrete administrative acts into the administrative reconsideration in advance. Secondly, the limiting conditions in the administrative reconsideration should be cancelled. Finally, the administrative reconsideration should not be final. The principle of the final settlement of the court should be established.Section six constitutes the conclusion. This part indicates that the extensive existence of administrative conflicts to some extent prevents the construction of harmonious society, a crucial task of our country. A perfect linking mode of administrative reconsideration and administrative litigation can effectively relieve and protect the opposite person's lawful rights and eliminate administrative disputes, and contribute to the formation of a harmonious society. |
