Judicial Supervision of Administrative Reconsideration: Practical Problems and Vision on Solution

 Author: Shen Fujun  Translated by: Michael Ni

[ Abstract ] The establishment of administrative reconsideration system makes it possible for the citizens to gain administrative relief. However, due to the systematic and practical reasons, there are still much deficiency of judicial supervision on the administrative reconsideration system which affects the function of administrative examination and judicial supervision, the function of administrative reconsideration of our country can not be fully played. Author believes that further improvement of the judicial supervision mechanism of the administrative proceedings on the administrative reconsideration shall focus on the following aspects: determining the defendant's qualification, examining the maintenance decision of the administrative reconsideration, setting up the principle of final award of judiciary and coordinating the examination scope and etc.

 [ Key words ]administrative reconsideration    administrative procedure  examination   judicial supervision

 On April 29, 1999, Administrative Reconsideration Law of the People's Republic of China was adopted on the 9th meeting of the Standing Committee of the 9th NPC, which has come into effect on Oct. 1 in the same year. Compared with the previous Regulation of Administrative Reconsideration enacted and promulgated by the State Council, it has achieved great development and breakthrough in many aspects. However, due to the deficiency of the administrative reconsideration system of our country and other relevant causes, the function of administrative reconsideration, the relief system in administrative system, is not effectively exercised. Enhancing the judicial supervision on administrative reconsideration through administrative procedure is an essential method to make administrative organs exercise power according to laws.

 1. Some cases show that China's administrative reconsideration fails to function effectively

According to Regulation of Administrative Reconsideration Article 1, the function of administrative reconsideration is "This Law is enacted pursuant to the Constitution for the purpose of preventing and correcting any illegal or improper specific administrative acts, protecting the lawful rights and interests of citizens, legal persons and other organizations, safeguarding and supervising the exercise of functions and powers by administrative organs in accordance with law".  Compared with the designation of function of the previous Regulation of Administrative Reconsideration, it appropriately indicates the purpose of administrative reconsideration system. According to article 1 of the previous Regulation of Administrative Reconsideration, the function of administrative reconsideration is "protecting and supervising the exercise of functions and powers by administrative organs in accordance with law, preventing and correcting any illegal or improper specific administrative acts, protecting the lawful rights and interests of citizens, legal persons and other organizations". This article locates the principal function of administrative reconsideration on "protecting and supervising the exercise of administrative power by administrative organs" among which "Protecting" has become the function in priority upon "supervising", which violates the original purpose of establishing administrative reconsideration system. The function in priority of administrative reconsideration system which is a very important administrative relief system of legal supervision on specific administrative acts of administrative organs and the supervision by hierarchy in the administrative system shall focus on "preventing and correcting any illegal or improper specific administrative acts " so as to achieve the legislative purpose of "protecting the lawful rights and interests of citizens, legal persons and other organizations" and provide necessary relief through administrative reconsideration system to citizens, legal persons and other organizations whose rights have been violated. If the purpose of administrative reconsideration system is only or mainly to "protect" the administrative power, it will lose its meaning and value of existence. ①Therefore, the function of administrative reconsideration system of our country defined by Administrative Reconsideration Law is basically appropriate and accurate, which reflects the characteristics of administrative reconsideration an administrative relief system.

Although the law has relatively clearly indicated the function that administrative reconsideration system shall realize (the function problem has been solved on systematic hierarchy), however, the special function of administrative reconsideration system of our country as an administrative relief system has not been effectively exercised taking on the hierarchy of specific regulation and practice, which is mainly manifested in the following aspects:

(1) The Current System of Administrative Reconsideration Can not Ensure the Independence of Administrative Reconsideration Office 

According to Administrative Reconsideration Law Article 3, the offices responsible for legal affairs within administrative reconsideration offices shall handle concrete matters related to administrative reconsideration. The offices of reconsideration (in charge of legal affairs) are subordinated to different hierarchies of People's Government and different administrative organs, which are lacking in independence. The office of administrative reconsideration is either the superior administrative organ of the administrative organ who has conducted the previous specific administrative act which has been applied to be reconsidered or the administrative organ itself. In this kind of situation, the administrative reconsideration office hardly has any right to make decisions on its own when performing administrative duties. Although some scholars advised to establish an uniform administrative reconsideration organ before the administrative reconsideration law has been enacted ①but the suggestion was not adopted. The current administrative reconsideration office is just an internal institution of administrative reconsideration organ. Sometimes it is even the internal institution of the administrative organ applied for administrative reconsideration which conducts the specific administrative act. ②This institution is totally attached to its superior organ without independent decision power. In practice, every hierarchy of people's government and departments of executive function shall establish offices in charge of administrative reconsideration according to their practical situation, such as legal system office, legal system institution regulation institution or legal system division and etc., which can not form an independent and unified system of administrative reconsideration. Relying on such an organ to bear the legal responsibility of administrative reconsideration relief is hard to achieve the purpose of Administrative Reconsideration Law. For in the society, lack of independence and autonomy is difficult for an organ to bear the responsibility of fair ruling.

(2) The basic principle of Administrative Reconsideration Law is hard to be reflected in the process of administrative reconsideration.

According to Administrative Reconsideration Law, Article 4, "Administrative reconsideration offices shall, when performing duties of administrative reconsideration, follow the principles of being lawful, fair, open, timely, and convenient to peoples, insist on correcting every mistake and ensuring to implement laws and regulations correctly". It is general that the basic principle of a law shall be the spirit of the law, which shall be fully complied by in all the activities so as to embody the function of law. However, it is a pity that the basic principle of Administrative Reconsideration Law is failed to be complied, among which reasons of the law itself and the reasons in practice are as follows:

(i) The principle of legitimacy and fairness can't be reflected. According to Administrative Reconsideration Law, the principal function of administrative reconsideration is "preventing and correcting any illegal or improper specific administrative acts", as the regulation which embodies the purpose of the law, this function shall be mandatory. However, in practical, some administrative reconsideration offices assuming the supervisory functions ignore this principle and maintain the decision of the administrative reconsideration cases to avoid being the defendant of administrative litigation or concern about the superior-subordinate relationship. Some specific administrative acts are maintained in administrative reconsideration procedure, but revoked or changed in verdict, which just reveals that administrative reconsideration agency are not legal and fair according to Administrative Reconsideration Law when they are performing their duties. There are a lot of causes besides the above ones for such consequences and some scholars analyze the following factors which restrict the administrative reconsideration offices to correct the illegal and inappropriate administrative acts of inferior organs : Firstly, the different administrative organs have their own economic interests according to the financial system, when the higher administrative organs want to change the acts of lower hierarchy, the high one should consider of the economic issues. Secondly, higher administrative organs take pre-intervention, express their views and guidance during some important cases, so they would withstand the test of their actions and be challenged by complaints of the lower hierarchy (the author thinks that this act itself is the denial to the system of administrative reconsideration). Thirdly, the present administrative system are mainly classified into vertical management, partly vertical management, local management and sector guidance, no matter in which type there are cooperation and coordination between the high and low hierarchies. It is hard to handle some relationship in administrative reconsideration. Hence, most high hierarchy maintain the result in administrative reconsideration, we can say the function of administrative reconsideration is limited. ①Author thinks, this kind of phenomenon makes administrative reconsideration system exist in name only, the "mistakes must be corrected" principle can't be carried out which can't guarantee the law and regulations either.

(ii) The basic principle of Administration Reconsideration Law can't be realized in administrative reconsideration.  "Doctrine of Publicity of Administrative Reconsideration refers to that when administrative organs are dealing with reconsideration cases, they shall treat them openly. Unless there are other reasons regulated by laws, such as involving state secret, trade secret or personal privacy and etc. can not be made a reconsideration decision on through Under-the-counter Operation. ②But the "principle of publication" is regulated in Article 4 of Administrative Reconsideration Law, while at the same time in Article 22, it stipulates that "Administrative reconsideration shall, in principle, examine the application in written. Except for the circumstances where the applicant makes a require or the office responsible for legal affairs of the administrative reconsideration office deems it necessary, the administrative reconsideration office may investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party." According to this article, no matter whether the reconsideration case is simple or complicated, "written hearing" shall be taken in principle. In terms of the hearing of some specific reconsideration case, there is no clear regulation on the organization constitution (for instance, taking collegial system or system of sole-judge proceedings) and procedure of hearing (taking strict hearing procedure or informal hearing procedure). ③Author thinks that written examination on all cases are prone to cause Under-the-counter Operation of administrative reconsideration and the interference from internal staff, especially under the condition that the respondent may has some relationship with the office of administrative reconsideration and the office may have a strong characteristic of anaclisis. This situation is prone to appear. Only when "applicant files an application" or "the office of administrative reconsideration who in charge of legalization regards it necessary", can the condition of case be investigated and opinions be heard. Besides what the regulation of the law says "may" rather than "should", whether the condition of cases can be investigated and opinion can be heard are not decided by offices of administrative reconsideration with independent status. Therefore, it is hard for such kind of "written examination" to embody the principle of "Publicity" of administrative reconsideration and a undisclosed operation can not be convinced for the justice of its result.

(iii)There is no specific provision that regulates the liability of administrative reconsideration offices and their staff who do not perform their duties according to laws.

There is a specific chapter of Administrative Reconsideration Law on the issue of legal liability, compared with the Previous Regulation of Administrative Reconsideration, which strengthens the supervision of the administrative examination and thus to some extent, ensuring that the administrative examination activities were carried out legally.  However, according to Article 35 "If any staff member of an administrative reconsideration office in administrative reconsideration activities, practices favoritism for personal interests or commits any other acts of jobbery and misfeasance, he shall , according to law, be given an administrative sanction such as warning, demerit record or heavy demerit record; if the circumstance is serious, he shall, according to law, be given an administrative sanction such as being demoted, being dismissed from post, or being discharged; if a crime is constituted, he shall be investigated for criminal responsibility according to law". However, that administrative organ normally maintains those acts of failing to exercise administrative reconsideration liability according laws, no matter whether the administrative acts applied for administrative reconsideration are legal or appropriate or not, is lacking in specific legal grounds. But  "acts of jobbery and misfeasance" mentioned above shall be explained according to authoritative explanation as "other acts of jobbery besides practicing favoritism and committing irregularities such as acts of abusing authority and dereliction of duty and etc.", ①which is still very abstract, general and lacking in definition. There is no specific regulation or interpretation to explain on whether the foregoing situations shall be included, which leads to the result that even when the decision of maintenance by administrative reconsideration is wrong through administrative proceeding, it is hard to pursue the liability of relevant organ and staff. Difficulty in pursuing liability may result in muddling through administrative reconsideration of administrative organs and affects the fully exercise of the function of administrative reconsideration.

In light of the said causes, it is quite common that citizens, legal persons or other organizations are not willing to apply for administrative reconsideration. Because it is a natural thought for citizens to seek for relief of laws for its fairness. The foundation of justice lies in the neutral judgement and it is the very defective element that administrative relief does not have. ②For this reason, to make relief system of administrative reconsideration fully function, it is necessary to further improve the supervision system of administrative proceeding on administrative reconsideration so as to make judicial supervision system on administrative reconsideration more complete in order to make the administrative reconsideration implemented normally.

2. The Justiciability of Administrative Reconsideration Acts Decides the Possibility to Supervise Them Fully and Effectively.

About the characteristic of administrative reconsideration acts, there are different views from domestic scholars. Someone regard administrative reconsideration as a relief of power, which is based on the foundation that administrative reconsideration and administrative proceeding shall provide citizens, legal persons and other organizations as parties concerned with relief and insurance. ③Other scholars hold the view that administrative reconsideration is a kind of administrative judicial act which can be divided into administrative reconsideration and administrative ruling. Administrative reconsideration solves problems of administrative disputes, while administrative ruling solves the problems concerning civil disputes relevant to administrative management. ④On the basis of regarding administrative reconsideration as administratively judicial activities, it can be divided further into "inclined to administrative activity" and "inclined to judicial activity". The point of view of "inclined to administrative activity" regards administrative reconsideration as a kind of administrative activity with certain judicial characteristic; the view of "inclined to judicial activity" regards that administrative reconsideration is a quasi-judicial activity. The method of division is a conclusion developed from the view that administrative reconsideration is a procedure between administrative procedure and lawsuit proceedings. ⑤Some scholars hold that either judiciary or relief is just the characteristic of administrative reconsideration and in terms of administrative reconsideration, its nature is just a kind of specific administrative act. ①Author thinks that although administrative reconsideration is called administrative relief act (from the respect of relief function), it can also be called administratively judicial act (from the respect of resolving disputes). But in terms of its natural attribute, just like the conclusion drawn by some scholars, it is a kind of administrative act with supervision characteristic②.

From the view of condition abroad, the foreign administrative systems and theories explain administrative reconsideration in different ways. The administrative reconsideration of England and France regard administrative reconsideration in nature as an administrative relief method from the perspective of protecting citizens' rights when citizens' legal rights are infringed by violation of laws or misfeasance so that it is call "Administrative Relief". Considering from the side of administrative organ, the concept of Administrative Reconsideration Law of Japan is that administrative reconsideration is just an examination on original administrative organ's administrative acts by relevant administrative organ and it is also called "Administrative examination". The system of Japanese administrative reconsideration system was set up by Examining Law of Unaccepted Administrative Acts in 1962.In Taiwan District of China, administrative reconsideration is always called "will of administrative action" which means the relief procedure that party concerned appeal to the direct superior organ of the original organ to request for revocation or modification of the original act due to the illegal or inappropriate acts of government administrative organs which caused the losses or damages of rights and interests of party concerned. So in foreign countries and Tai Wan District of China, although the name of the system is different, it has the some characteristic with the administrative reconsideration system in our country③.

The establishment of administrative reconsideration system makes it possible for administrative organ to rule relevant administrative disputes. Viewing from the development of the systems of administrative reconsideration in western countries, the establishment of administrative reconsideration system adapted the demands of social development. The traditional system of separation of executive, legislative, and judicial powers shall have new connotation that there is no unsurpassable boundaries between administration power and judicial power and administrative power can borrow beneficial experience from the operation of administrative power and judicial power can also learn from some operation modes of administrative power. However, western countries generally established corresponding supervision system when they endowed administrative organs with the power of administrative reconsideration so as to prevent the abuse of the power of administrative reconsideration and the infringement of legitimate rights of citizens, especially the establishment of judicial relief system. Because according to western concept of judiciary, judiciary is the last well of justice so that administrative reconsideration system is generally under the supervision of judiciary in western. Administrative reconsideration ruling should not be the final verdict. When party concerned disagrees with the ruling, he or she can call for judicial relief④.

In our country, there is no doubt that administrative reconsideration system is under the judicial supervision of people's court. Because in terms of its nature, administrative reconsideration acts are still acts through which the administrative organs exercise the administration power no matter either the characteristic of administrative relief or characteristic of judicial power or even the characteristic of supervision on administration administrative reconsideration acts have and it is also a specific administrative act for ruling whether the original specific administrative act is legal or appropriate, which embodies the application of the state administrative power of administrative organs. But it is generally acknowledged that administrative power shall be supervised by judicial power, which has been applied by nowadays countries under the rule of law. Therefore, China's Administrative Reconsideration Law Article 5 writes "If any citizen, legal person or any other organization refuses to accept an administrative reconsideration decision, he or it may, in accordance with the provisions of Administrative Procedure Law of the People's Republic of China, bring an administrative proceeding before a people's court".  China's Administrative Procedure Law and the Supreme Court relevant judicial interpretations have the corresponding provisions on the judicial supervision to the administrative reconsideration act. So we can draw a conclusion that the judicial supervision system similar to western countries has been set up in our country.

3. The Deficiency of the Current Supervision System on Administrative Reconsideration of Administrative proceeding in Our Country

Although the judicial supervision system on administrative reconsideration acts has been established in our country, this supervision system still contains deficiency of inharmony and immaturity no matter in terms of system or practice so that the supervision function on administrative reconsideration by judicial power can not be thoroughly realized.

(1) Non-uniform of Examining Principle

According to the regulation of Administrative Procedure Law, the administrative reconsideration office shall examine whether the administrative act is legal or appropriate. Administrative Procedure Law clearly regulates that the people's court shall examine the legality of specific administrative acts when hearing administrative cases. Only when administrative punishments are obviously unfair, can the court make modification by ruling. It shows that the examination on specific administrative act in administrative reconsideration shall comply with the principle that legality and reasonableness examination shall both be the priority. But in administrative procedure, the examination on specific administrative act shall comply with the principle that legality examination shall be the priority and reasonableness examination be the exception.   Different examination principles result that in practice, due to the actual effect of administrative examination is limited, its functions do not normally play, and the examination principles of administrative procedure are limited, in principle it can not conduct a reasonableness examination so that a large number of administrative reconsideration cases belonging to the rational examination can not be supervision by courts, citizens, legal persons or other organizations often do not receive adequate protection.

(2) Non-uniform of Examining Scope

    The scope of administrative reconsideration examination regulated in Administrative Reconsideration Law almost covers all aspects of the specific administrative acts, including not only the specific administrative acts, but also some parts of the abstract administrative acts (that is, the regulations of the State Council, every people's government above country hierarchy, their departments and the township (town) people's governments which is the foundation of the specific administrative acts applied for administrative reconsideration). The Administrative Procedure Law stipulates that the examining scope of the court in the administrative proceedings shall only involve specific administrative acts, which should be stipulated by law, while abstract administrative acts are not included.. Moreover, the Administrative Reconsideration Law and the Administrative Procedure Law both say that some administrative cases fall within the final award of administrative reconsideration, and the court shall not accept. This situation also makes a part of administrative cases difficult to enter the field of administrative proceedings, even the parties refuse to accept the result although the administrative reconsideration procedure has been completed. The judicial supervision on administrative reconsideration acts by the people's court can not be the fully realized.

(3) Non-uniform of Examining Foundation

According to Administrative Reconsideration Law, the hearing of administrative reconsideration cases on the basis includes not only laws and regulations, but also the provisions of the state council departments, local people's governments above the county hierarchy and their regulations and rural sector, town people's government regulations. The Administrative Procedure Law stipulates that when the court hears administrative case, laws and regulations shall be the foundation and take rules as references. Different legal foundations cause different results. The same specific administrative act easily leads to different result in administrative reconsideration system and administrative proceeding. To the contrary, the judge may even maintain the verdict bases on the administrative normative documents which is not consistent with laws and regulations. As a result the function of supervision of the court on administrative reconsideration is greatly reduced.

(4) The Difference of Reconsideration Decision Leads to Different Standard of Determining the Defendant

According to Administrative Procedure Law Article 25 paragraph 2, "Regarding to a reconsidered case, if the reconsideration organization upholds the original specific administrative act, the administrative organ that initially took the act shall be the defendant; if the reconsideration organization has changed the original specific administrative act, the reconsideration organization shall be the defendant". The result of the regulation in practice is that once the reconsideration organ makes the decision of maintenance, the result is out of legal relationships and the legal status of the reconsideration organ is located in a vacuum area. Relatively, it bears no legal liability. To avoid becoming defendant, reconsideration organ will maintain the original the reconsideration decision on specific administrative act to safeguard their own interests. ① The author believes that such a provision is no less than encouraging the administrative reconsideration organ not to make a decision in accordance with the law and blindly uphold the original decision to settle the issue. This is not only opposite to the principle of administrative reconsideration system, but also completely violating the judicial supervision when the administrative reconsideration organ does not fulfill duties and freely approve decisions.

4. Further Improvement of Supervision System on Administrative Reconsideration of Administrative Procedure

The administration of government according to laws (including the principle of rule by Administrative Law embodied through the performance of reconsideration duty by offices of administrative reconsideration) needs powerful supervision of judicial power. If we really want to play the full function of the established administrative reconsideration system, we also need to eliminate the deficiency of supervision system on administrative reconsideration by administrative proceedings on the basis of laws so as to make the functions of administrative relief and judicial relief on the respects of controlling the abuse of administrative power and protection of citizens' rights work. Moreover, the effective supervision on administrative reconsideration by administrative proceeding can not only promote the hierarchy of administration according to laws by administrative reconsideration organs so as to rebuild the image of such an important legal system of administrative reconsideration in public but also ensure the effective realization of doctrine of the rule of administrative law. In some countries with developed administrative law, administrative proceeding contributes irreplaceable effectiveness to the administrative rule of law. For example, in France, the so-called "motherland of administrative law", it can be completely recognized that "Administrative Procedure Law is the main method of ensuring the principle of rule by administrative law in France"②.

Author thinks that concerning the function of the current system of administrative reconsideration in our country can not be fully played so that the judicial supervision system on administrative reconsideration of our country shall be further improved and make the exercising of administrative power of reconsideration organs according to laws possible through supervision of the court in the process of administrative procedure. Therefore, Author reckons:

(1) The Defendant Shall be the Reconsideration Organ in the Administrative Procedure for All the Cases After Reconsideration

The determination of defendant of administrative procedure in administrative reconsideration case is the premise of whether the people's court can take effective supervision on administrative reconsideration. Concerning the existence of the psychology of administrative organs that they are afraid of appearing in court, being defendant and losing cases, the stipulation of Article 25 paragraph 2 of Administrative Procedure Law, "for a reconsidered case, if the office that conducted the reconsideration sustains the original specific administrative act, the administrative organ that initially undertook the act shall be the defendant" has actually become a main reason for some administrative organs to maintain the specific administrative acts applied for administrative reconsideration so as to avoid being defendant. Under such a legal background, some administrative reconsideration organs may make decisions on maintaining the original acts without any reason and without bearing legal liability so as to maintain self-interests and avoid to be involved in administrative proceedings. By this token, it is quite necessary for administrative law to modify this regulation. It shall be clearly regulated that no matter the administrative acts are maintained by the administrative reconsideration organ or the specific administrative acts are changed after the administrative reconsideration, the party concerned shall file an administrative proceeding taking the administrative reconsideration organ as the defendant. The benefits of such reformation are that the risk of unfavorable legal consequence is set for the nonfeasance of administrative reconsideration by administration reconsideration organs so as to promote the administrative reconsideration organs to perform their duties regulated by laws. Moreover, "administrative staff's psychological pressure from the judicial examination can make them exercise power prudently". ①After that, the decision of maintenance of administrative reconsideration can be included into the scope of judicial examination which attempts to avoid the judicial examination through maintaining the original administrative acts, which makes the relatively complete realization of judicial examination on administrative reconsideration by administrative proceedings. At the same time, the judicial principle of "who acts, who shall be charged" can be realized.

(2) The Establishment of Examination System on the Maintenance  of Administrative Reconsideration Decision

Whereas the inconsistency between the principle of legality examination in administrative procedure and the principle of legality and reasonableness examination sharing the same priority in administrative reconsideration, some negligence of administrative reconsideration decision of the reasonableness examination by administrative reconsideration organs in practice is out of the judicial supervision. Because from the perspective of the administrative reconsideration system and the concept from the implementation of the administrative proceeding system in the decade of our country, it is still the problem of legality regarding the negligence of legality examination and examination of legality doctrine established by Administrative Procedure Law restricts the power of examination of the Court. Moreover, Administrative Procedure Law also regulates that the administrative reconsideration decision of maintenance can not be the object of examination in the administrative proceeding. Therefore, Author holds the view that it is necessary to reform this concept and system. Firstly, the purpose of administrative reconsideration regulated clearly in Article 1 of Administrative Reconsideration Law is that "for the purpose of preventing and correcting any illegal or improper specific administrative acts". Moreover, Article 28.1.1 also regulates that only under the condition that "the facts are clearly ascertained by a specific administrative act, the evidence for the act is conclusive, the application of grounds is correct, the procedure is legal, and the content of the act is proper", can it be maintained. If the administrative reconsideration organ maintains an inappropriate specific administrative act, it not only violates the purpose of the law but also the condition under which an act can be maintained in administrative reconsideration, which shall be regarded as an illegal decision violating the regulation of Administrative Reconsideration Law rather than an unreasonable problem. Secondly, the administrative reconsideration decision of maintenance is also a kind of specific administrative act and whether the reason and conclusion of decision conforms to law shall be examined by the court according to law. Because at this moment what the court examination is the legality of maintenance of the administrative reconsideration decision itself which wholly conforms to the principle of examination according to the regulations of Administrative Procedure Law. So the people's court can apply the legality examination principle fixed by Administrative Procedure Law to examine cases and give relevant judgment. In terms of specific operation, that the administrative reconsideration organ does not perform the duty of legality examination shall be clearly regarded as an illegal act. The people's court shall revoke such maintenance of decision. Meanwhile it is impossible for the court to make decision on the reasonableness examination instead of the administrative reconsideration organ on rationality issues. So at the same time when the court revoke the approval decision of administrative reconsideration, the verdict shall express the fact that the nonfeasance of rationality examination duty by the administrative reconsideration organ and adjudge the organ to make a new decision on administrative reconsideration. It can not only make the administrative reconsideration organ become the defendant in the administrative proceeding so as to make the maintenance of decision become the object in the administrative proceeding but also avoid the appearance of interference on administrative power by judicial power, which promotes the comprehensive performance of administrative reconsideration duties by the administrative reconsideration organs and utmost protects the legitimate rights of citizens, legal persons or other organizations.

(3) To Establish the Principle of Judicial Final Award

The existence of judicial organs is just for protecting social justice at the final perimeter. To ensure the fairness of administrative reconsideration, western countries generally have established the principle of judicial final award. Because judicial examination is achieved through judicial power restricting administrative power. No matter England or America of common law system or France or Germany of civil law system, they all established the principle that administrative verdict shall be reviewed by judiciary. For example, in England, it would not prevent the Supreme Court from examining the verdicts even when sometimes laws do not regulate the power of appeal on such verdicts made by administrative verdict institution. ①There are regulations on final award of administrative reconsideration both in Administrative Reconsideration Law and Administrative Procedure Law of our country, which means exclusion to part of administrative reconsideration cases implementing judicial supervision. This regulation on final award of administrative reconsideration violates the principle of "judicial final award" of modern legal system, which makes some avoidance of judicial examination of part of administrative reconsideration acts an existing legal fact. Although the scope of final award of administration in our country is very narrow and Administrative Procedure Law Article 12 subparagraph 4 stipulates that only when "specific administrative acts that shall, as provided for by law, be finally decided by an administrative organ", do they not belong to the acceptance scope of administrative proceeding. But after all it does not conform to the principle of modern legal system on judicial final award and shall be eliminated so as to protect the power of final award by the court to administrative disputes on basis of system.

(4) Coordinate the Examination Scope of Administrative Reconsideration and Administrative Proceeding

Currently, the scope of administrative reconsideration is definitely larger than administrative proceeding. Moreover, the Administrative Reconsideration Law also stipulates that part of abstract administrative acts can be examined in administrative reconsideration. But the scope of administrative proceeding is much narrower than that of administrative reconsideration, which leads to the failure of getting part of the administrative cases into the procedure of administrative proceeding even they can access to the procedure of administrative reconsideration. This factor is contradictory to the legal principle of "judicial final award" and can not ensure the rights of a part of administrative party concerned by judiciary and finally the judicial supervision on administrative reconsideration by administrative proceeding can not be realized fully. Therefore, the acceptance scope of administrative reconsideration cases shall be coordinated with the acceptance scope of administrative proceedings and make them basically consistent. Meanwhile, the people's court shall be endowed with part of judicial examination power on abstract acts. Because from the perspective of rule of law, the power to judge whether an abstract administrative act is legal or not shall be given to not only administrative organs but also judicial organs. The coordination of scope of both administrative reconsideration and administrative proceeding can make all administrative disputes be ruled by the court in the end so that the judicial supervision on administrative reconsideration acts of the court can be comprehensively realized.

5. Epilogue

Generally speaking, the purpose of administrative reconsideration and administrative proceeding overlap closely with the legislation purpose which not only protect the legitimate rights of citizens, legal person or other organizations but also supervise and ensure the performance of administrative power of administrative organs according to laws. Although administrative reconsideration enjoys certain characteristics of relief and judiciary, in nature, it still belongs to common administrative acts and judicial supervision on administrative acts has become irreplaceable basic content of modern legal system." Judicial examination is the basic measure of adjusting illegal acts. Those who suffered from damages caused by administrative verdict or other administrative acts can appeal to the court for the legality issue of administrative verdict or administrative acts." ②Therefore, it is not only the requirement of comprehensively realizing the state judicial power of the people's court but also the goal that the principle of administrative legalization pursues to further improve the supervision system on administrative reconsideration by administrative proceeding, broaden the approach of judicial relief, utmost realize the judicial supervision on administrative acts, systematize the relief of citizens in the field of administrative law and form a coordinated relief system for each other. 

(Author's Institution: East China University of Political Science and Law)

Annotations:

①Jiang Anming. Administrative Law and Administrative Procedure Law. Law Press 2003 Page 298

①Peng Shuqing. Reflection on Establishing a Unified Administrative Reconsideration Organ, Research on Administrative Law  1997. No.2

②According to Administrative Reconsideration Law Article 4, if the specific administrative act of State Council departments or People's Government of provinces, autonomous regions and municipalities are not convinced, the application of administrative reconsideration shall be delivered to the People's Government of State Council departments or People's Government of provinces, autonomous regions and municipalities who have done the act. Under such circumstance, the defendant of administrative reconsideration is the reconsideration organ itself.

①See also: Wang Xuezheng On System Innovation of Administrative Proceedings and Administrative Reconsideration in Our Country , China Legal Science, 2001, No. 4

②Chen Xinming: Theory of Administrative Law of China, Press of China University of Political Science and Law, Edition 2002, Page 278

③Jiang Anming, Administrative Law and Administrative Procedure Law, Law Press, Edition 2003. Page 307

①Research Office of NPC Committee for Legal Affairs, Interpretation of the Provisions and Practical Guide of Administrative Reconsideration Law of the People's Republic of China, China Democracy and Legal System Press, Edition 1999, Page 152

②Wang Xuezheng, On System Innovation of Administrative Proceedings and Administrative Reconsideration in Our Country , China Legal Science, 2001, No. 4

③See also Jiang Anming, Administrative Law and Administrative Procedure Law, Beijing University Press, China Higher Education Press, Edition 1999, Page 280

④See also: Ying Songnian, New Theory of Administrative Law, Founder Chinese Press, Edition 1998, Page 444

⑤Ying Songnian, Administrative Acts Law, People's Press, Edition 1993, Page 687

①See also: Cheng Yanlei, An Yang, New Judicial Interpretation of Administrative Procedure Law Article 53 Doubt-Also On the Nature of Administrative Reconsideration, published on Luo Haocai, Administrative Law Essays (V), Law Press, Edition 2002, Page 402

②See also: Luo Haocai, Administrative Law, Beijing University, Edition 1996 Page 347-349

③Hu Jiangmiao, The Comparison between China and Foreign Administrative Reconsideration System, comparative law, 1994 No.2

④Jiang Mingan, Administrative Law and Administrative Procedure Law, Law Press, Edition 2003, Page 282

①See also: Cheng Yanlei, An Yang, New Judicial Interpretation of Administrative Procedure Law Article 53 Doubt-Also On the Nature of Administrative Reconsideration, published on Luo Haocai, Administrative Law Essays (V), Law Press, Edition 2002, Page 399

②Wang Mingyang, Administrative Law of France, Press of China University of Political Science and Law, Edition 1989, Page 212

①Wang Mingyang, Administrative Law of England (Second Part), China Legal System Publishing House, Edition 1995, Page 566

① Wang Mingyang, Administrative Law of England, Press of China University of Political Science and Law, Edition 1987, Page 146

②[Am] Bemard schwanz, Administrative Law, translated by Xu Bingyi, Public Publishing House Edition 1986, Page 396