Ideal And Reality

In November 2014,the Section 2 of the Article 25 of the old Administrative Litigation Law was emended to: “For a reconsidered case,if the administrative organ that conducted the reconsideration sustains the original administrative act,the administrative organ that initially undertook the act and the administrative organ that conducted the reconsideration shall be the co-defendant;if the administrative organ that conducted the reconsideration has amended the original administrative act,the administrative organ which conducted the reconsideration shall be the defendant.”,or “Co-defendant” system in short.The Co-defendant system caused warm debate across China-wide,and the voice of support and opposition fight against each other.From the point of the legislative evolution of the defendant system in the administrative reconsideration cases,the original purpose of the Co-defendant system was to decrease the high rate of sustaining decisions,force the reconsideration organs to strengthen its hierarchical supervision,play its role to resolve the administrative disputes and to improve the capability of administrative organs and reconsideration organs through judicial review.Thus as a specific administrative act,the administrative reconsideration decision should be justiciable.And the sustaining decision is also a confirmation to the original administrative act which form a special joint act.It constitutes the jurisprudential basis of the Co-defendant system.Practice is the scientific criterion for testing the system.With the implementation of the Co-defendant system for almost two years,I analyzed the data of the administrative reconsideration cases across all level of Beijing administrative organs especially the cases managed by Municipal Government and found that the Co-defendant system didn't receive the expected effect: the increasing error correction rate is not just because of this system;the rate of responses to reconsideration cases is increasing while the reconsideration system's shunting effect to the administrative litigation is decreasing;the Co-defendant system increased the burden of the reconsideration organs and influenced the quality of the trial.I analyzed the reason(s)from the points of the counterparts of administrative acts and the reconsideration organs,and concluded that we need to reform the administrative reconsideration system itself to resolve the rate puzzle as there is only limited effect of Co-defendant system.However,under the current Co-defendant system,we can optimize the litigation procedure,strengthen the defeat effect,improve the professional level of the reconsideration organs,and play the role of mediation mechanisms to reduce the negative impact by the system,and to stimulate the development of the administrative reconsideration system.