Chinese Procedure Of Administrative Recovery

The system of administrative recourse has been established for a long time in our country,but it has always maintained the regulation of principle after the establishment of the system,lack of operational system design,especially the design of administrative recourse procedure,which leads to the effect of administrative recourse,which is not consistent with the purpose of the establishment of administrative recourse system.Therefore,it is an important content of the research of administrative theory to explore the design of administrative recourse program,activate the administrative recourse system,make it play its due function and respond to the purpose of established administrative recourse.Based on the previous theoretical research and the perfection of the administrative compensation procedure,the following four parts are discussed:The first part defines the basic concepts of the administrative compensation procedure design,including the concept of administrative recovery and administrative recovery procedure.First of all,the concept of administrative recourse is defined which is based on the definition of the previous research on administrative recourse and defines the nature of administrative recourse in this article.This article makes a distinction between the administrative recourse and the administrative punishment in the process of administrative recovery definition.The administrative recourse procedure is the concept of the general administrative procedure,which highlights the definition of the rights guarantee of the executive staff,and also clarifies the basic characteristics of the administrative recourse procedure.Secondly,a basic comparison is made between the administrative recovery procedure and the general administrative procedure.In terms of generality,they pursue the goal with a certain purpose,while preventing the arbitrary exercise of power.In terms of differences,it is shown as follows:(1)the procedural status of administrative organs is different.In the administrative recovery procedure,the recourse plays the role of the party and the decision maker.In general procedure,administrative organs mainly act as decisionmakers;(2)the power of operation in the procedure is different.According to the definition of administrative recovery,the power of recourse is actually the right of claim in public law.Generally,the power in the general administrative procedure does not generally have the nature of the claim;(3)the administrative relative person involved in the procedure and the influence of interests are different.The administrative relative person of general procedure has only citizenship and mainly affects the interests of the relative person.But the administrative relative person in the administrative recovery procedure has the dual status of the citizen and the civil servant.Its operation needs to consider the interests of the executive staff and the national administrative interest.The second part explains the Constitution and application principle of administrative recovery procedure.On the basis of the study of the administrative recourse system in China,the constitution of the administrative recourse procedure should include the necessary part of the administrative recourse procedure and the subject of the procedural participation and its rights(powers).The former includes the procedural rights system of the recovered person and the procedures of the standard recovery procedure.The latter includes the recourse body,the recovered person,and the same level financial departments and procuratorial organs as the main body of the supervision,and their rights(powers).Of course,the emphasis on these rights is actually a sign of their obligations.The principles that should be applied to the procedure of administrative recovery include the principle of proportionality,the principle of duty protection and the principle of effective recovery.The principle of proportionality is to require the administrative recourse body to achieve the goal of recourse,which is mainly to reduce the loss of the state,and to measure the purpose and the influence on the rights of the executive staff.The administrative recourse body cannot use the means of "shooting the bird with the cannon" and the formula of "killing the chicken by killing the eggs".The principle of duty protection is actually based on the consideration of national administrative interests.Because of the arbitrary exercise of the power of recourse,the administrative enthusiasm of the executive staff will be damaged,and the interests of the relative and the national administrative interests will be adversely affected.The principle of effective recourse is put forward on the basis of the insufficiency of the validity of the current recourse,the failure of the administrative recourse or the replacement of other responsibilities,that is a requirement of the administrative recourse body and the administrators.The implementation procedure of the administrative recourse and the concrete measures in the supervision procedure will be supported by the principle.The third part analyzes defects in procedural provisions of administrative recovery in China.In the process of analysis,it is mainly based on the sixteenth provisions of the State Compensation Law concerning administrative recovery,combined with the local provisions on administrative recovery.Through the in-depth analysis of the provisions of the compensation fee for the part or all of the compensation for the "order" of the administrative recourse in our country,it can be found that in the system of administrative recourse,there is still a lack of the limitation of recourse,no recourse starting procedure,no clear fact investigation,proof,statement,debate and so on,and the necessary steps are not determined.External relief is not established.There is no definite enforcement procedure to ensure the realization of the decision of recovery.No supervisory procedures have been set up to supervise the effective exercise of the power of recourse.The fourth part puts forward corresponding suggestions for the design and perfection of administrative recovery procedure in China.Based on previous studies,this paper proposes that the construction of administrative recovery procedure system should be based on the understanding of its logical premise.Therefore,Before proposing the construction of the administrative recourse procedure,the purpose,the nature of the administrative recourse,and the nature of the internal and external behavior of the administrative recourse are reunderstood,and the restrictions on the construction of the administrative recourse procedure are lifted and the deficiencies of the existing regulations are answered.Then,based on these understandings,combining with the legal provisions of extraterritorial administrative procedures and considering the existing legal provisions of our country,it is suggested that the administrative recourse procedure of our country should construct a perfect proposal from the starting procedure,the decision procedure,the relief procedure,the execution procedure and the supervision procedure,and pay attention to the combination of existing systems when the construction proposal is put forward.