On The Trial Of Administrative Recousideration Organ As Co-defendants

Article 26 of the Law of Executive Accusation expressly states that the reconsideration organ shall be a co-defendants when maintain the original administrative act.The two judicial interpretations,Several Interpretation and Applicable Interpretation of the Supreme People's Court have constructed the specific judicial system of the case in which the reconsideration organ acts as the co-defendants.The basic idea of the judicial interpretation of the Supreme People's Court is that:the court examines and adjudicates the reconsideration decision together with the original administrative act.And the reconsideration organ and the administrative organ that made the original administrative act shall bear the proof of the legality of the original administrative act.The Supreme People's Court neglects the differences in the level and nature between the original administrative act and the reconsideration decision in the system of concurrent investigation and adjudication,which results in the loss of independence of the court in the investigation and adjudication of the reconsideration decision.Depending on the investigation of the legality of the original administrative act,the examination of the legality of the reconsideration decision has been forgotten by the Applicable Interpretation and its judicial practice.The act of joint proof together with its rule of supplementary collection of evidence after reconsideration organs obviously violates the legal requirement of the Law of Executive Accusation,and seriously violates the administrative procedural rules of "obtaining evidence before adjudication".On the basis of the understanding of the difference between the level and nature of the original administrative act and the reconsideration decision and on the premise of recognizing the close connection between the legitimacy of the original administrative act and the substantive legitimacy of the reconsideration decision,this paper explores the feasibility of the system of examining,proving and adjudicating the administrative reconsideration and the original administrative act separately.Several suggestions are put forward for the improvement of the trial system of co-defendants as the reconsideration organs.