Research On The Reasoning Of Administrative Reconsideration Decision Documents

In the case of Chenzhou fanlongdui mining company,the supreme law made a request for the reasoning obligation of the reconsideration organ for the first time,but the revision of the reconsideration law and the reasoning reform of interpretation did not focus on the reasoning of the reconsideration decision.At the same time,the practice has a strong demand for the standardization of the reasoning of reconsideration decision documents.The reasoning of administrative act in a broad sense includes the reasoning of administrative decision and the reasoning of quasi judicial decision.The former is the reasoning of administrative act in a narrow sense,and the latter is the reasoning of administrative reconsideration.Administrative reconsideration reasoning emphasizes the whole process of reasoning,while administrative reconsideration decision document reasoning emphasizes the written reasoning content of the final decision document,which is easier to standardize and supervise.Taking the reasoning of administrative reconsideration decision documents as the research object,this paper selects representative judgment documents and reconsideration decision documents to investigate the deficiencies in the reasoning practice of administrative reconsideration decision documents in China.The deficiencies in the elements of substantive reasoning are as follows: there are some problems in the determination of facts,such as lack of evidence support,omission of the determination of litigation facts,lack of evidence,insufficient reasoning on the discretion of elements,obvious improper evidence and so on;There are some problems in the application of law,such as Misquoting,omitting and being not specific in invoking legal norms,filling legal loopholes,insufficient reasoning for effect discretion,improper handling of legal concurrence and so on;In terms of procedure application,there are some problems,such as lack of explanation or demonstration of procedure application,insufficient and incorrect demonstration of procedure application,etc.The deficiencies in the formal elements are as follows: there are some problems in the reasoning structure,such as the incomplete structure of "verified by this organ",the unclear focus of "this organ believes",the different ways of discussing procedural matters,and the absence of legal norms at the end of the text;Reasoning language has some problems,such as the expression is not rigorous and refined enough,the quotation and punctuation are not standardized,and the expression method is single.The reasons for the lack of reasoning in administrative reconsideration decision documents cover four aspects: lack of standards,lack of ability,active avoidance and lack of supervision.The lack of standards is manifested in the absence of unified norms,the improper substitution of decision documents and opinion documents,the lack of ability is manifested in the lack of ability of legal interpretation and legal argumentation,the active avoidance is manifested in the lack of fault-tolerant space between effective reconsideration documents and judicial review,the resource dilemma of mismatching after system reform,increasing the burden of reasoning,and the lack of supervision is manifested in the absence of incentive mechanism and rating system for reconsideration reasoning The reconsideration decision document has not been publicly online.The reasoning system of administrative reconsideration decision documents should be improved from internal norms and external guarantees.Internal norms include: formulating unified norms for reasoning of administrative reconsideration decision documents,clarifying the application of administrative reconsideration decision documents and opinion documents,and establishing self correction procedures of administrative reconsideration organs.The external guarantee includes: the construction of complicated and simple diversion mechanism and reasoning type of administrative reconsideration decision documents,the construction of document rating system and incentive mechanism for administrative reconsideration personnel,and the construction of document disclosure and guiding case system for administrative reconsideration community.At present,the second turn of China’s reconsideration function has led to the censure of the judicial path of reconsideration.The academic circle has been limited to the dispute over the primary and secondary positioning of function for a long time,showing the situation of the study of reconsideration homogenization.Using Habermas’ s "communicative behavior theory" to examine the elements in the path of China’s administrative reconsideration reform,it is found that the reasoning reform has not been paid enough attention.The reasoning reform of administrative reconsideration decision documents has the advantages of "quantity" and "quality" in the functional positioning of "main channel".The reasoning of reconsideration decision documents should deepen the reasoning content,give consideration to multiple functions,pay attention to details and focus on details to achieve the goal of "main channel".