Analysis Of The Legal Problems Of Administrative Reconsideration Organs As Joint Defendants

Administrative litigation is an important support of the judicial system and one of the three major lawsuits in China.How to determine the defendant’s qualification in administrative litigation has been hotly debated in the administrative law circle.Before,the law of our country stipulated that only when the administrative reconsideration organ changed the original administrative act can it be the defendant,which led to the difficulty of the administrative reconsideration system in solving administrative disputes.When the administrative procedure law was revised in 2014,the system of joint defendants of administrative reconsideration organs was brought into the scope of revision as the focus,hoping to make institutional adjustments to urge the administrative reconsideration organs to play the role of supervising lower administrative organs.Although the system also played a positive role in the process of operation,at the beginning of 2018,the Supreme Court issued the interpretation on the application of the administrative procedure law(hereinafter referred to as the "interpretation of administrative litigation")The judicial interpretation of the system reflects the incompatibility between the implementation of the system and the reality.Firstly,there are some defects in the theoretical level,including the distribution of evidence proving scope violating the "dossier" doctrine and the division of the responsibility boundary of the co defendants.Secondly,in the process of practice,there are also some problems that need to be concerned.For example,due to the lack of specific confirmation and norms on the working mode of "coordination and reconciliation",the phenomenon of abnormal withdrawal of lawsuits has increased.Third,it is against the main functional orientation of the administrative reconsideration organ,which leads the administrative organ to devote more energy to dealing with the reconsideration cases,but has no time to consider the development of its own work.In the end,it even leads to the increase of omission of administrative reconsideration organs.Combined with the background of taking the performance of administrative organs as an important indicator of assessment,in order to avoid being the defendant,the administrative reconsideration organs are likely to choose only to identify the original act in violation of the legal procedures and not to conduct his review.Therefore,in order to better play the positive role of this system,resolve the disputes between the administrative counterpart and the administrative organ in time,and promote the efficient operation of the administrative system,the author believes that we should start with improving the theoretical basis of the reconsideration system,reasonably allocate the burden of proof between the original administrative organ and the administrative reconsideration organ,establish a reasonable and smooth administrative response mechanism,and take multiple measures at the same time To solve many problems in our practice.For example,we should strengthen the examination of "negotiation and reconciliation",strengthen the construction of administrative response team,and establish the supervision and accountability mechanism and examination standards of administrative reconsideration.In addition,I put forward my own innovative views on the future development of this system,such as the written review system to explore the legality of the reconsideration decision procedure and the legalization of the administrative reconsideration committee.