Viewpoint... The impact of the new administrative reconsideration law on the legal relief of administrative agreement disputes.
Published:
2024-05-10
Administrative reconsideration and administrative litigation, state compensation, appeal system, etc. constitute the legal system of administrative relief, and the revision of the new administrative reconsideration law has a profound impact on the administrative relief of administrative agreement disputes.
An administrative agreement refers to an agreement with citizens, legal persons or other organizations that has the content of rights and obligations in administrative law in order to achieve administrative management or public service goals. It mainly includes government franchise agreements, land, housing and other expropriation compensation agreements, mining rights and other state-owned natural resources use rights transfer agreements, government-invested affordable housing lease, sale and purchase agreements. The Administrative Procedure Law implemented on May 1, 2015 included administrative agreements into the scope of administrative litigation for the first time. The "Administrative Reconsideration Law" (referred to as the New Administrative Reconsideration Law) revised on September 1, 2023 also included administrative agreements in the scope of administrative reconsideration. Administrative reconsideration and administrative litigation, state compensation, appeal system, etc. constitute the legal system of administrative relief, and the revision of the new administrative reconsideration law has a profound impact on the administrative relief of administrative agreement disputes.
1. administrative agreements are included in the scope of administrative reconsideration, and the relevant subjects can apply for administrative reconsideration accordingly.
Article 11, Item 13 of the new Administrative Reconsideration Law stipulates that under any of the following circumstances, citizens, legal persons or other organizations may apply for administrative reconsideration in accordance with this Law, and consider that the administrative agency has not concluded, failed to perform, or failed to perform in accordance with the law. Or illegally change, terminate the government franchise agreement, land and house expropriation compensation agreement and other administrative agreements.
Previously, due to the "Administrative Reconsideration Law" and its implementing regulations at that time, the administrative agreement was not included in the scope of administrative reconsideration, so that there was a big dispute about whether the administrative agreement could be reconsidered. At the same time, the former Legislative Affairs Office of the State Council's "Reply to the Letter of the Ministry of Transport on Whether Administrative Agreement Disputes Caused by Government Franchise Agreements Belong to the Scope of Acceptance of Administrative Reconsideration" (2017 No. 866) stipulates that administrative agreements do not fall within the scope of administrative reconsideration. Most reconsideration organs, reconsideration bodies and people's courts have accordingly held that administrative agreements are not reconsideration-able.
The new administrative reconsideration law clearly includes the administrative agreement into the scope of accepting cases, which provides a legal basis for the reconsideration relief of administrative agreement.
The pre-reconsideration of the administrative organ's failure to perform the statutory duties in the 2. administrative agreement.
Pre-reconsideration generally means that citizens, legal persons, or other organizations are dissatisfied with specific administrative actions stipulated by laws and regulations. When seeking legal remedies, they should first apply to the administrative reconsideration agency for administrative reconsideration instead of directly filing a lawsuit with the people's court. Only after the administrative reconsideration can the parties file an administrative lawsuit in the people's court.
The new administrative reconsideration law responds to the functional orientation of the main channel of administrative reconsideration, draws on past experience, and carries out major repairs in response to practical needs. The first paragraph of Article 23 of the new administrative reconsideration law stipulates that under any of the following circumstances, the applicant shall first apply to the administrative reconsideration organ for administrative reconsideration. If he is not satisfied with the administrative reconsideration decision, he may bring an administrative lawsuit to the people's court according to law: (1) he is not satisfied with the administrative penalty decision made on the spot; (II) he is not satisfied with the decision made by the administrative organ infringing upon the ownership or use right of natural resources obtained according to use; the (III) believes that the administrative agency has failed to perform its statutory duties as stipulated in Article 11 of this law; the (IV) applies for government information disclosure, but the administrative agency does not disclose it; (V) laws and administrative regulations stipulate that it should first apply to the administrative reconsideration agency for administrative reconsideration. Other circumstances.
The provisions related to the pre-reconsideration of administrative agreements are mainly reflected in the third paragraph of the aforementioned law, and it is considered that the administrative organ shall be pre-reconsidered if it fails to perform its statutory duties as stipulated in Article 11 of this Law. Specific to administrative agreements, it mainly includes situations such as failure to enter into or perform administrative agreements in accordance with the law.
Therefore, on the whole, the new administrative reconsideration law not only brings administrative agreements into the scope of accepting cases and changes the situation that administrative agreements can only be subject to litigation relief in the past, but also reversely regulates that when administrative organs fail to perform their legal duties related to administrative agreements, the parties can only review the front in advance through the construction of the reconsideration front system.
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