The Application Of The Principle Of Adverse Alteration Prohibition In The Administrative Reconsideration Law

On August1,2007the regulations of the implementation of the administrative Reconsideration law began to implement officially. The article51was introduced the principle of adverse alteration prohibition in administrative reconsideration system, which is big step forward. It has the very vital significance for the administrative reconsideration system play its relief function of the administrative relative person. Due to the principle is introduced into our country administrative reconsideration system time soon, we no thorough research on the principle, that there were some problem also have no clear provisions shall be applicable to the specific. As a result, we faced the double tests of theory and practice after the principle established. First of all, the principle of adverse alteration prohibition as an important principle in the administrative relief system has many conflicts with the traditional internal supervision of the administrative philosophy. The administrative body for reconsideration only emphasizes reconsideration system internal supervision function and they ignored the reconsideration applicant right protection. The second, principle of administration according to law seems to had very powerful limit to the national public power in theory and can effectively protect the citizens’ legal rights. However, in practice often appear the administrative reconsideration organ did strictly follow the principle But the rights of the administrative reconsideration applicant had not been well protected. Instead, they make a decision in more adverse to the applicant, which is obvious conflict is prohibited with the principle of adverse alteration prohibition. Third, when the original administrative behavior improper handling or the presence of defects, the administrative body for reconsideration cannot decide directly more against decisions to reconsideration applicant because of the principle. Therefore, the administrative body for reconsideration can only cancel the original specific administrative act and ordered to redo the original administrative authority. It’s processing way and runs counter to the spirit of the principle of efficiency, not to efficiently solve the problem. Fourth, the existing security administration system of administrative reconsideration system is biggest obstacle to implement play its due role for the principle of adverse alteration prohibition. It is difficult to the principle to against the powerful institutional defects. Fifth, due to the lack of specific rules, the principle implemented difficultly. Analysis the reason is that, the administrative reconsideration system concept transformation was not complete and function is not perfect and the lack of specific rules for the principle of adverse alteration prohibition. Therefore, for the principle, we should not only start from the principle itself to perfect the specific rules, but also should be from the whole system of administrative reconsideration. We should through the continuous improvement of the administrative reconsideration system and establish form a complete set of system idea and system for the principle to ensure the implement ion. First, change the administrative reconsideration system concept. Establishing the system of administrative remedy for the administrative reconsideration of the only idea and we should to safeguard human rights as the ultimate goal of the administrative reconsideration system. Second, improve the system of administrative reconsideration relief function. Establishing the independent status of the administrative reconsideration organ and strengthen the judicialization of the administrative reconsideration application. Third, about Supplement of specific rules for the principle of adverse alteration prohibition in the administrative reconsideration system, we can Learn from the principle applies in the specific rules in the field of litigation.