Research On The Co-defendant System By The Reconsideration Agency

Article 26,paragraph 2,of the new 2014 Administrative Litigation Law stipulates that if the reconsideration agency maintains the original administrative act,the original administrative agency and the reconsideration agency are the co-defendants,and if the reconsideration agency changes the original administrative act,the reconsideration agency is the defendant.This provision changed the 1989 “Administrative Litigation Law” in the“reconsideration to maintain the original administrative agency,the reconsideration of changes to the reconsideration agency” provisions.The reason for the legislative changes is to solve the problem of high “maintenance rate” of administrative reconsideration.Legislators created a special joint litigation system on the basis of the theory of “integration”,aimed at reducing the inaction of the reconsideration agency and promoting the administrative reconsideration system to fully play the role of settling disputes.During the six years of the implementation of the joint defendant system,the reconsideration agency has achieved positive results in changing the “maintenance meeting” phenomenon and strengthening internal supervision.However,there have always been doubts about this system in the theoretical circles because of the weak theoretical foundation of the system.In terms of system design,the system has shortcomings such as a wide range of “maintenance” of reconsideration,violation of sanctions,conflicts of jurisdiction at levels,and unreasonable regulations on burden of proof.In practice,the system has problems such as the sharp increase in the pressure of the reconsideration agency to respond to the suit,the “disguised”inaction of the reconsideration agency,and the questioning of the impartiality of administrative reconsideration,which affects the actual operation of the system.In view of the reality of the reconsideration agency acting as a co-defendant system,we must not only recognize the positive impact of the system,but also see its shortcomings.We need to look at the theoretical community’s questioning of this system objectively.It should be problem-oriented within the framework of the existing legal system,by redefining the scope of the “maintenance” of the reconsideration,giving the plaintiff the right to choose the defendant,and determining the level of the reconsideration agency.Competent courts and strictly regulate the burden of proof to improve the design of the system,and make the system play a positive role as much as possible.In addition,supporting measures should be taken to strengthen the independence of the reconsideration agency,strengthen the “judicial nature” of the reconsideration procedure,establish a response team for the reconsideration agency,and improve the accountability system for the “inaction” of the reconsideration agency.The reconsideration agency has a negative impact on the joint defendant system.