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A Study On The Construction Of The Objections Review System Under The Vision Of The "Main Channel" Of Administrative Review

Posted on:2024-01-27Degree:MasterType:Thesis
Country:ChinaCandidate:M Y LuFull Text:PDF
GTID:2556307148459014Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
In order to give full play to the professionalism of administrative review organs and the exercise of discretionary powers granted by law,and to enable the courts to use their limited human and financial resources more effectively,the Central Committee of the Communist Party of China considered and adopted the Reform Programme for the Administrative Review System in 2020,and the Administrative Review Law(Amendment)(Draft for Public Comments)was introduced at the end of2020,and the Administrative Review Law(Draft Revision of First Instance)was released in October 2022.The two main objectives of the administrative reconsideration reform are: first,to make administrative reconsideration the "main channel" for resolving administrative disputes;and second,to substantively resolve administrative disputes through the administrative reconsideration channel.However,because of the "freedom of choice" principle and the characteristics of internal oversight,the two goals of administrative reform are difficult to achieve,and it is necessary to establish an external monitoring system for administrative review bodies.This article discusses the following:Firstly,the concept,attributes and functional positioning of the administrative objection review system are sorted out and defined;the objection review system refers to a third-party supervision system in which administrative relatives who disagree with the administrative review decision can file a review with the objection review organ,which can be regarded as a reconsideration or re-examination system with the characteristics of non-administrative and non-judicial external supervision and independence.Secondly,the Draft for Public Comments(2020)abolished the "defendant system" for administrative review organs,and the Revised Draft for First Instance(2022)retains the "defendant system",but the nature of its internal supervision and lack of independence remains unchanged.Although the Draft Revision of the First Instance(2022)retains the "defendant system",its internal oversight and lack of independence remain unchanged,and its impartiality is still questioned,making it difficult to achieve the objectives of the "main channel" of administrative review and the "substantive resolution of administrative disputes".Secondly,in terms of the policy basis,although the Reform Programme does not specifically require a system of review of objections,it does explicitly require the establishment and refinement of an external monitoring system.Once again,the review system of objections to the main extraterritorial countries;although different expressions,the United Kingdom,the United States and Germany are "to review the first principle";the United Kingdom,the United States,Japan,Germany,France and Belgium are the implementation or existence of a secondary review or secondary review system;in addition,although the four countries,including Japan,the review system of objections in the system design is different,but in the establishment of institutions,personnel composition,personnel appointment and removal,the scope of the case,review principles,review content,etc.are independent of the administrative,with specialization,professionalism,comprehensiveness and the whole process and other characteristics.Finally,regarding the construction path of the objection review system,firstly,the principles of the construction of the objection review system of administrative reconsideration should be specified;secondly,it is suggested that the Administrative Reconsideration Law should be amended to clarify the "principle of pre-review",and a secondary reconsideration review system independent of the administration should be established on the basis of the Administrative Reconsideration Committee,which should be given the power to review and decide;thirdly,the construction path of the objection review system should be proposed on the basis of the local situation,taking the systems of the United Kingdom,the United States,Germany and Japan as reference.
Keywords/Search Tags:Administrative review, "Main channel", Dissent review system, Constructed path
PDF Full Text Request
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