Study On The Reconsideration Organ As The Joint Defendant In Administrative Litigation

Whether the administrative reconsideration organ can become the defendant in the administrative litigation involves the positioning of the administrative reconsideration organ and the qualitative problem of the administrative reconsideration system,as well as the connection between administrative reconsideration and administrative litigation.Before the amendment of the administrative procedure law in 2015,usually the administrative reconsideration organ is the general administrative subject.In the case the administrative reconsideration organ does not change the original administrative behavior(except Perform statutory duties litigation),it can be successfully applied for the original administrative reconsideration system in the existing legal framework and litigation system.After the amendment of the administrative litigation law,the co-defendant system amplifies and displays the connection between reconsideration and litigation,and conflicts appear in practice,which need to be sorted out.This article begins with the emergence of the system of administrative review of the co-defendant,and expounds it in two parts.First of all,this paper introduces the theoretical and legislative background of the determination of the defendant in the reconsideration case in China,and illustrates its theoretical defects,legislative background and the one sidedness of the purpose.Secondly,expounds the status of implementation of the administrative reconsideration case co-defendant system,the system will not achieve the legislative purpose of the original set,but the weakening of the administrative reconsideration function,and increase the administrative and judicial costs.The second part of this article expounds the problems existing in the system of reconsideration of the co-defendant,and makes further analysis of the system.First of all,the defects of co-Defendant theory.Then,the problems of administrative reconsideration and administrative trial work by the joint defendant system.And the problems arising from the two systems of reconsideration and litigation.Finally,the obsession with the administrative subject causes the administrative subject to ignore the independence of the upper and lower subjects in the external relations,and to aggravate the opposition between the counterpart and the administrative organ.The third part elaborates the effective response in the existing legal system.It is suggested that the original administrative act should be taken as the main object of litigation,focusing on the result of relief rather than the process,and the independence of administrative reconsideration should be recognized.We should strengthening the examination of the norms in the administrative reconsideration and strengthening responding to the work of administrative reconsideration organ.In the trial field,the defendant's primary and secondary status and differential legal liability are clearly defined.In the trial process,the independence of the reconsideration is clearly determined,and the legality of the review is only examined and the legality of the reconsideration reconsideration conclusion is not reviewed.