The Research On The Right Of Reconsideration Application Of The Person Subjected To Non-Litigation Administrative Enforcement Cases

Non-litigation administrative enforcement is stipulated in article 66 of the Administrative Procedure Law of 1989.Since then,this system has been constructed and improved by judicial interpretation and the Administrative Enforcement Law,which is conducive to expanding the scope of people’s courts’ supervision over administrative organs according to law,ensuring timely implementation of administrative decisions,and maintaining public interests and social order.Relevant judicial interpretations and the Administrative Enforcement Law also give administrative organs the right of reconsideration application in order to smooth the channels.However,the Administrative Enforcement Law,the Administrative Procedure Law and relevant judicial interpretations do not grant the person subjected to enforcement the right of reconsideration application.Neither the Administrative Enforcement Law nor the Administrative Procedure Law states the legislative reasons,and the institutional arrangement has obvious difficulties and defects in theory and designation.The Administrative Enforcement Law,the Administrative Procedure Law and relevant judicial interpretations for accusing the protection of the rights of the person subjected to enforcement of non-litigation administrative enforcement cases is far less than the person subjected to enforcement in the implementation of the administrative organ,accusing the person subjected to enforcement of non-litigation administrative enforcement cases only has procedural relief rights such as the limited right to state and defend,the right of obtaining the administrative order,and the rights of afterwards relief such as the right to state compensation according to law,the right to apply for a retrial,t he right to apply for procuratorial advice or protest.The absence of the right of reconsideration application of the person subjected to enforcement in non-litigation administrative enforcement cases does not conform to the principle of respecting and protecting human rights,deviates from the theory of rights relief,exceeds the necessary limit of pursuing administrative efficiency,and violates the principle of proportionality.Because the provisions of laws and judicial interpretations are not clear,some courts hold that the person subjected to enforcement do not have the right of reconsideration application;Some courts consider that the person subjected to enforcement do not have the right of reconsideration application and accept the reconsideration application.People’s courts have different opinions and operations on whether the person subjected to enforcement has the right of reconsideration application,which exacerbates the judicial relief of the person subjected to enforcement poorly.The person subjected to enforcement does not fully have the right to state and defend in the cases of non-litigation administrative enforcement,to some extent,his procedural remedies have been limited.The interpretation of the Administrative Procedure Law and related cases also show that the enforcement action implemented by the administrative organ according to the court’s ruling on enforcement is not actionable.If the enforcement action was wrong,even though the person subjected to enforcement shall have the rights of afterwards relief such as the right to state compensation according to law,the right to apply for a retrial,t he right to apply for procuratorial advice or protest,some administrative enforcement action infringes upon the legitimate rights and interests of the person subjected to enforcement has a non-recoverable,the legitimate rights and interests of the person subjected to enforcement cannot achieve full compensation,and the related procuratorial supervision is facing some difficulties,lack of operability.Therefore,no matter from the perspective of the basic theory of administrative law or the defects of the current system and judicial practice,it is necessary to give the person subjected to enforcement the right of reconsideration application of non-litigation administrative enforcement cases,and to construct the system of reconsideration application for the person subjected to enforcement of non-litigation administrative enforcement cases.The scope and time limit of the reconsideration application by the person subjected to enforcement and the procedure for the person subjected to enforcement to exercise the right of reconsideration application shall be set by mutatis mutandis the provisions of the reconsideration application system of the administrative organ of non-litigation administrative cases.On the basis of the Administrative Enforcement Law,the Administrative Procedure Law and the judicial interpretations of the Administrative Procedure Law,and the exploration of referee methods of non-litigation administrative enforcement cases by the relevant local people’s court and the Supreme People’s Court,the Supreme People’s Court shall formulate judicial interpretation,and build referee methods of non-litigation administrative enforcement cases perfectly.