Viewpoint | Interpretation of the Highlights of the Revision of the New Administrative Reconsideration Law

The first legislative purpose of the new administrative reconsideration law is to add the content of "giving full play to the role of administrative reconsideration as the main channel to resolve disputes and promoting the construction of a government under the rule of law", emphasizing and highlighting the clear positioning of the administrative reconsideration system.

According to the data released by the Ministry of Justice on July 11 this year, with the exception of the Intellectual Property Office, the vast majority of government departments have fewer litigation cases than reconsideration cases. Therefore, in terms of quantity, administrative reconsideration is already the main channel for resolving administrative disputes. Taking the financial department as an example, the data shows that the Ministry of Finance accepted a total of 271 administrative reconsideration cases and responded to 71 lawsuits in 2022. The number of reconsideration cases was significantly more than litigation cases. Therefore, administrative reconsideration is inevitable as the "main channel" to resolve administrative disputes. In the litigation cases in which the financial department is the defendant, a considerable number involve information disclosure, and the new administrative reconsideration law also includes such disputes in the pre-reconsideration scope. After the implementation of the new administrative reconsideration law, the number of financial litigation cases will be further reduced.

The "specific administrative act" in the new administrative reconsideration law is replaced by "administrative act. The new law explains the administrative acts, "administrative acts, including the administrative acts of organizations authorized by laws, regulations and rules." The reason for the change is that in administrative reconsideration cases, whether the administrative act is "specific" is often the focus of dispute in the case, and whether it is "specific" or not needs to be judged by the reconsideration organ. This revision is also a unified connection with the "Administrative Litigation Law". As long as it is "considered to infringe their legitimate rights and interests", the parties can apply for administrative reconsideration, which expands the scope of administrative reconsideration.

The new Administrative Reconsideration Law adds Article 4, paragraph 4, "The administrative reconsideration body of the State Council may issue guiding cases for administrative reconsideration."

At present, reconsideration cases are not mandatory to be made public. This amendment to the new law adds that reconsideration agencies "can" issue administrative reconsideration guiding cases. Although there is still no coercive force, if guiding cases are released, it will undoubtedly play a role in supervising the law enforcement of administrative organs, and can also provide case reference for administrative organs to make administrative actions.

Articles 24 and 25 of the new Administrative Reconsideration Law relatively focus on the administrative reconsideration jurisdiction system. It clearly stipulates that the administrative reconsideration responsibilities of the working departments of the local people's governments shall be canceled, and the local people's governments at or above the county level shall exercise the administrative reconsideration responsibilities uniformly. At the same time, administrative reconsideration cases of administrative organs, taxation and national security organs with vertical leadership such as customs, finance and foreign exchange administration shall be under the jurisdiction of the organs at the next higher level, The people's governments of provinces, autonomous regions and municipalities directly under the central government and departments of the State Council shall implement the State Council. The revision will greatly streamline administrative reconsideration agencies and personnel, and centralize the jurisdiction of administrative reconsideration to local people's governments at or above the county level. Specifically:

1. Local people's governments at or above the county level shall have jurisdiction over administrative reconsideration cases that are not satisfied with the administrative acts made by the working departments of the people's governments at the same level, the people's governments at the next lower level, the dispatched organs established by the people's governments at the same level according to law, the people's governments at the same level or the organizations authorized by their working departments; the dispatched organs established by the people's governments of provinces and autonomous regions according to law shall have jurisdiction over relevant administrative reconsideration cases with reference to the functions and powers of the people's governments at the municipal level divided into districts.

2. The department of the State Council shall have jurisdiction over administrative reconsideration cases that are not satisfied with the administrative acts made by the department, the dispatched offices established by the department according to law, and the organizations authorized by the laws, administrative regulations and departmental rules managed by the department.

3. If the administrative acts of the administrative organs, taxation and international security organs under vertical leadership, such as customs, finance and foreign exchange management, are not satisfied, they shall apply to the competent department at the next higher level for administrative reconsideration.

4. If the administrative act of the judicial administrative department of the local people's government that performs the duties of the administrative reconsideration body is not satisfied, it may apply to the people's government at the corresponding level for administrative reconsideration, or to the judicial administrative department at the next higher level for administrative reconsideration.

The new Administrative Reconsideration Law adds Article 5, "Administrative reconsideration organs may conduct mediation in handling administrative reconsideration cases. Mediation shall follow the principles of legality and voluntariness, shall not harm the interests of the State, the public interest and the legitimate rights and interests of others, and shall not violate the mandatory provisions of laws and regulations."

The "mediation" method added in the new law has been stipulated in the implementation regulations of the reconsideration law, and this amendment has been added to the new law. The termination of administrative reconsideration mainly includes three ways: the reconsideration organ makes a decision, the parties to the reconsideration party reaches a settlement, and the reconsideration organ mediates the case. Mediation is led by the reconsideration organ. Whether or not to accept mediation and the outcome of mediation, the reconsideration organ shall follow the wishes of the parties. In practice, many cases are caused by the untimely and incomplete information communication between the administrative counterpart and the administrative organ. If the administrative counterpart can accept the mediation of the reconsideration organ in some specific cases, in the process of mediation, the administrative organ communicates face to face with the counterpart and makes professional interpretation of laws, regulations and policies, which is conducive to improving the efficiency and effect of dispute resolution and avoiding the risk of subsequent litigation in time, save judicial and administrative costs.

Article 52 of the new administrative reconsideration law is added, "people's governments at or above the county level shall establish administrative reconsideration committees with the participation of relevant government departments, experts, scholars, etc., to provide advisory opinions for handling administrative reconsideration cases, and to study and put forward opinions on major issues and common issues in the administrative reconsideration work. The specific measures for the composition and work of the administrative reconsideration committee shall be formulated by the administrative reconsideration body of the State Council. If the trial of an administrative reconsideration case involves one of the following circumstances, the administrative reconsideration agency shall submit an advisory opinion to the Administrative Reconsideration Committee: (1) The case is major, difficult, and complex; the (II) is highly professional and technical; (III) Article 24 of this Law The administrative reconsideration case specified in the second paragraph: (4) The administrative reconsideration agency deems it necessary. The administrative reconsideration body shall record the advisory opinions of the administrative reconsideration committee." The third paragraph of Article 61 is added, "for administrative reconsideration cases that are submitted to the administrative reconsideration committee for advisory opinions, the administrative reconsideration organ shall take the advisory opinions as an important reference basis for making administrative reconsideration decisions."

The facts on which the administrative organs enforce the law in certain professional fields are based, it is likely that the degree of professionalism or complexity can not be determined by their own strength, and even some administrative acts under reconsideration will affect the administrative counterpart in a wider range except the parties to the case. At this time, the reconsideration agency introduces experienced experts and scholars to participate in administrative reconsideration cases, and expert advice is an important reference for making reconsideration decisions, which can effectively avoid wrong cases caused by cognitive differences. Take the law enforcement of the financial department as an example. The people who know the financial business best are basically in the financial department, but this does not mean that there is no need to be associated with other professions. For the financial department, the most typical case is the handling of government procurement complaints. It is necessary to listen to the opinions of industry experts, but it is necessary to leave marks in the whole process of expert review to ensure that experts issue comments fairly, impartially and objectively. Especially in cases involving product professional parameters, expert comments are an important theoretical support for making complaints handling decisions. At present, the composition of the Administrative Review Committee and the specific method of carrying out its work have not yet been announced.

Chapter IV of the New Administrative Reconsideration Law distinguishes between "ordinary procedures" and "summary procedures", and stipulates the circumstances in which summary procedures can be applied to administrative reconsideration trials. The revised new summary trial procedure has certain significance for improving the efficiency of administrative reconsideration. However, the new law only stipulates in the ordinary procedure chapter that the reconsideration organ should listen to the opinions of the applicant and the hearing system, and there are no relevant provisions for the summary trial procedure. At the same time, the time limit for the respondent to submit a written reply and submit evidence in the summary procedure is different from that in the ordinary procedure (the time limit for the reply of the summary procedure is 5 days), and the time limit for the reconsideration decision of the reconsideration organ is also different. For administrative reconsideration hearings, the Administrative Reconsideration Office of the People's Government of Shandong Province formulated the "Regulations on Administrative Reconsideration Hearings in Shandong Province", which will be implemented on January 1, 2024 simultaneously with the new Reconsideration Law. In administrative reconsideration cases after the new law came into effect, the changes in the aforementioned provisions increased the channels and opportunities for applicants to express their statements and defense opinions, promoted effective communication between applicants and administrative agencies, and helped resolve disputes in a timely manner. But at the same time, the requirements for the procedures and factual basis of administrative acts made by administrative organs have also been greatly improved.

Article 11 of the new administrative reconsideration law further expands the scope of administrative reconsideration cases and is closer to the administrative procedure law. Added the types of administrative reconsideration that can be applied for administrative actions such as administrative compensation decisions, work-related injury determination, administrative agreements, and government information disclosure. At the same time, it also stipulates that it does not fall within the scope of administrative reconsideration.

Article 23 of the new Administrative Reconsideration Law expands the situation of pre-reconsideration from two to five, and the three new ones are: 1. Refrain from the administrative penalty decision made on the spot; 2. It is considered that the administrative organ has failed to perform its statutory duties as stipulated in Article 11 of this Law; 3. The administrative organ shall not disclose the application for government information disclosure.

The purpose of the three new reconsideration fronts mentioned above is still to resolve administrative disputes within the administrative organs through institutional constraints, reduce the trial burden of the people's courts, and at the same time reduce the risk of litigation by administrative organs and reduce judicial and administrative costs. At the same time, it should be noted that the new law particularly emphasizes the obligation of administrative agencies to inform. The second paragraph of Article 23 clarifies that in the case of pre-reconsideration in accordance with the law, the administrative agency shall inform citizens, legal persons or other organizations when making administrative actions. First apply to the administrative reconsideration agency for administrative reconsideration.

In addition to continuing to use the provisions of the current reconsideration law that "an application for administrative reconsideration shall be filed within 60 days from the date when the administrative act is known or should be known", the new administrative reconsideration law also clarifies how to calculate the time limit for an application for reconsideration under special circumstances, as follows:

1. If an administrative organ makes a specific administrative act and fails to inform a citizen, legal person or other organization of the right to apply for administrative reconsideration, the administrative reconsideration organ and the time limit for application, the time limit for application shall be calculated from the date when the citizen, legal person or other organization knows or should know the right to apply for administrative reconsideration, the administrative reconsideration organ and the time limit for application, but it shall not exceed one year from the date when it knows or should know the content of the time.

2. If the application for administrative reconsideration filed by real estate exceeds 20 years from the date of the administrative act, and other applications for administrative reconsideration exceed five years from the date of the administrative act, the reconsideration organ shall not accept them.

In order to effectively implement the reconsideration decisions made by the administrative reconsideration organs, to achieve the purpose of closing the case and truly resolving disputes, the new administrative reconsideration law has added 77, 78 and 79 articles, further strengthening the implementation and supervision of administrative reconsideration decisions. Specific as follows:

1. If the respondent fails to perform or delays the performance of the administrative reconsideration decision without justifiable reasons, the administrative reconsideration organ or the relevant higher-level administrative organ shall order it to perform within a time limit, and may interview the relevant person in charge of the respondent or give a notice of criticism.

2. If the applicant or the third party fails to sue or perform the administrative reconsideration decision within the time limit, it may be enforced by the administrative organ or the people's court respectively according to the circumstances.

3. In view of the respondent's failure to perform or delay the performance of the administrative reconsideration decision without justifiable reasons, the responsible leaders and directly responsible persons shall be given warnings, demerits, and major demerits in accordance with the law; if they refuse to perform after being ordered to perform, they shall be given demotion, dismissal, or punishment in accordance with the law.

4, the establishment of administrative reconsideration decision public system.