Study On The System Construction Of Re-Opening Administrative Procedures

Re-opening administrative procedures is a special relief system that allows citizens to apply to administrative organs for re-examination of administrative acts that have passed the statutory relief period.This system originates from Germany and aims to safeguard civil rights,administer by law and substantially resolve administrative disputes.Although it has not been introduced into China’s existing laws,it is indeed necessary and feasible to introduce it according to China’s existing relevant administrative cases,legislative and judicial practices,and foreign legislative and judicial experience.However,re-opening administrative procedures is the re-examination of administrative acts with the formal validity of continuation,which will inevitably affect the stability of the law.Therefore,it is necessary to set strict application conditions for the reopening of administrative procedures in order to avoid citizens applying for re-opening administrative procedures at will and balance the principle of administration by law and the principle of legal stability,including: first,the application subject should be limited to administrative counterpart or interested persons;Second,the object of application should be limited to the administrative act that has passed the statutory relief period and has no res judicata,while excluding the administrative act that has no continuous effect;Third,the reasons for the application are: 1)the fact or legal status on which the administrative act with continuous effect is based has changed afterwards and advantageous to administrative counterpart or interested persons;2)the administrative act with continuous effect has found new evidence that existed when the administrative act was completed and is sufficient to prove that the original administrative act is illegal;3)other reasons that are equivalent to reasons for retrial in the Administrative Procedure Law and are sufficient to affect substantive justice;Fourth,there are other restrictions on the application,one is the limitation on the period,and the other is that the applicant must have no gross negligence.After re-opening administrative procedures,the administrative organ shall review and make a new decision in accordance with the law.The new decision includes three situations: first,rejection of the application at the procedural stage;second,maintenance of the original administrative act at the substantive stage;third,revocation,annulment or change of the original administrative act at the substantive stage.According to the principle that there are rights,there must be remedies,and the new decision arising from re-opening administrative procedures should be a new administrative act that can be sued.The court should always respect the administrative power of the administrative organ and uphold the principle of judicial modesty.Only when the facts of the substantive elements are clear and sufficient to make a judgment can the administrative organ directly order it to take a specific administrative act,but when the facts of the substantive elements are not clear,they shall not make administrative decisions on behalf of administrative organs.In addition,with reference to the Guidance on Properly Handling the Issue of Marriage Registration by Counterfeiting or Practicing Falsification recently introduced in China,we can introduce procuratorial power before judicial relief and after the new decision to reopen the administrative procedure is made,and strive to resolve administrative disputes with the help of procuratorial power.