About Administrative Reconsideration and Administrative Litigation in Administrative Law!!

Let's talk about their nature and differences.

Administrative reconsideration refers to the activity of a state administrative organ in the exercise of its administrative functions and powers and a dispute with the other party that is the object of management, and on the basis of the application of the other party, the state administrative organ at the next higher level or other organs prescribed by law shall examine and make a decision on the specific administrative act that caused the dispute in accordance with the law.

Administrative reconsideration is based on written review and non-mediation. After the conclusion of the administrative reconsideration is made, it has the force of law.

Note: As long as the law does not stipulate that the reconsideration decision is final, if the parties are dissatisfied with the reconsideration decision, they may still file a lawsuit with the people's court in accordance with the provisions of the Administrative Litigation Law.

Note: The parties must file an administrative reconsideration after the administrative organ has already made an administrative decision, and if the administrative organ has not made a decision, there is no issue of reconsideration.

Administrative reconsideration is premised on the application of the administrative counterpart. The application for reconsideration filed by the administrative counterpart arises from dissatisfaction with the specific administrative act of the administrative organ. Administrative reconsideration is an activity of administrative organs to deal with administrative disputes.

To put it simply: the task of reconsideration is to resolve administrative disputes, not civil or other disputes.

Administrative litigation refers to the activities of citizens, legal persons or other organizations that believe that the specific administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests, and file a lawsuit with the people's court in accordance with the procedures and requirements prescribed by law, and the people's development court will review and make a ruling on the specific administrative acts.

Administrative litigation and administrative reconsideration are two parallel legal remedy systems. For citizens, legal persons and other organizations, administrative litigation and administrative reconsideration have the remedial function of protecting their legitimate rights and interests. However, there is a difference between the two, and administrative reconsideration is an internal supervision system of administrative organs, which is carried out before administrative litigation.

Administrative litigation is a judicial remedy, and the people's court makes a litigation ruling, which is the ultimate solution, also known as the principle of "judicial final relief". Compare the two.

Now your question: if you apply for administrative reconsideration, if you are not satisfied with the reconsideration result, you can file an administrative lawsuit with the court within 15 days after receiving the reconsideration decision, but not all cases can be litigated.

The cases that are not accepted by administrative litigation are: 1. State acts. 2. Criminal justice acts.

3. Administrative guidance acts that do not have coercive force. 4. Abstract administrative acts. 5. Reject the repetitive handling of the party's appeal against the correct conduct.

6. Acts that do not have an actual impact on the rights and obligations of citizens, legal persons or other organizations. 7. Statutory administrative final adjudication. 8. Acts made by an administrative organ involving decisions on the rights and obligations of the civil servants of that administrative organ.

9. Administrative mediation. 10. Statutory administrative arbitration.

Paragraph 2 of Article 16 of China's Administrative Reconsideration Law clearly stipulates: "Where a citizen, legal person or other organization initiates an administrative lawsuit with a people's court, and the people's court has already accepted it in accordance with law, it shall not apply for administrative reconsideration."

Conducting administrative litigation and administrative reconsideration at the same time is to make trouble for oneself and does not comply with the regulations. You just need to distinguish the difference between the two, what kind of lawsuit is conducted. If the administrative reconsideration is not satisfied, then the administrative lawsuit will be conducted.

Litigation and Reconsideration Relationship (Form 42).

Free Choice of Reconsideration Proceedings A lawsuit may be filed within 15 days of receipt of the reconsideration decision or the expiration of the reconsideration period, with exceptions.

Reconsideration option but final (restrictive choice) Entry and exit penalties (fines and detention for foreigners, detention for Chinese); Provincial and ministerial-level units reconsider their own behavior decisions (they can file a final ruling).

Pre-reconsideration and final Reconsideration decision made by provincial** under specific conditions on the ownership of natural resources.

It is recommended that you go online to find Lin Hongchao or Hu Jinguang's administrative law lecture notes and recordings to study, and I personally feel that the two of them give better lectures!

Legal analysis: 1. The basis for the production is the same. They are all legal systems that are based on the existence of administrative disputes and are used to resolve disputes.

2. The purpose and function are the same. All of them are aimed at preventing and correcting illegal and improper administrative acts, protecting the legitimate interests of citizens, legal persons, and other organizations, and ensuring and supervising the administration of administrative organs according to law. 3. The object of review is basically the same.

Both administrative reconsideration and administrative litigation take administrative disputes as the object of handling, and both must examine whether the administrative act is legal, but the reconsideration organ is simply an administrative organ, so the scope of review should be broader. At the same time, the reasonableness of the administrative act can be reviewed, as well as the normative documents below the rules and regulations on which the administrative act is based. 4. The conditions are the same.

All of them are activities that are initiated on request. The initiation of both procedures depends on the application of the counterparty. 5. Administrative reconsideration and administrative litigation are both means of remedy.

Both administrative reconsideration and administrative litigation are remedial acts, and both have the nature of ex post facto and upon application, that is, they are both a means of supervision after the fact, and they must be subject to the initiation of the administrative counterpart. 6. Both administrative reconsideration and administrative litigation are initiated by citizens, legal persons or other organizations, and administrative organs, as a party to the exercise of administrative power, have no right to initiate them. Both apply the principle of non-prosecution and ignorance, and both are acts based on application.

The respondent or defendant in administrative reconsideration and administrative litigation is a state administrative organ that enjoys the administrative functions and powers of the state and has taken administrative acts.

Legal basis: Administrative Litigation Law of the People's Republic of China Article 2 Citizens, legal persons or other organizations have the right to file a lawsuit in the people's court in accordance with this Law if they believe that the administrative acts of administrative organs and administrative organs imitating the administrative acts of the personnel of the People's Republic of China infringe upon their lawful rights and interests. ?

"Administrative acts" as used in the preceding paragraph includes administrative acts taken by organizations authorized by laws, regulations, or rules.

1. Those who are dissatisfied with the results of administrative reconsideration may file an administrative lawsuit, and those who are dissatisfied with the judgment of an administrative lawsuit cannot apply for administrative reconsideration.

2. In terms of the relationship between administrative reconsideration and administrative litigation, China adopts a model of "the plaintiff's choice is the principle, and the reconsideration is the exception". In other words, unless otherwise provided by laws and regulations, administrative reconsideration is not a necessary procedure before initiating an administrative lawsuit. In terms of plaintiff selection, you can choose to apply for reconsideration first and then file a lawsuit, or you can choose not to apply for reconsideration and file a lawsuit directly.

If reconsideration and litigation are chosen at the same time, the reconsideration should be carried out first and the litigation later, and the application for reconsideration cannot be made after the litigation, let alone the two procedures of reconsideration and litigation should be carried out at the same time.

1. Whether an administrative lawsuit can be initiated during the administrative reconsideration period.

No. According to China's Administrative Litigation Law, unless laws and regulations stipulate that an application for administrative reconsideration must be made first, the parties to an administrative dispute may freely choose whether to apply for administrative reconsideration or file an administrative lawsuit. Where administrative reconsideration has already been accepted in accordance with law, the parties must not file a lawsuit within the statutory time limit for reconsideration; Where an administrative lawsuit has already been accepted in accordance with law, no further application for administrative reconsideration may be made.

2. What is the difference between administrative reconsideration and administrative litigation?

The difference between the two:

1. The adjudication organs are different. Administrative reconsideration is heard by the administrative organ at the higher level of the administrative organ that took the specific administrative act; Administrative litigation, on the other hand, is heard by the people's court at the location of the administrative organ that took the specific administrative act.

2. The legal basis is different. Administrative reconsideration is based on the Administrative Reconsideration Law and the Regulations for the Implementation of the Administrative Reconsideration Law; Administrative litigation is based on the Administrative Litigation Law.

3. The procedure is different. There is only one level of administrative reconsideration, and those who are dissatisfied with the administrative reconsideration decision can only file an administrative lawsuit with the people's court in accordance with the law; In administrative litigation, if you are not satisfied with the judgment of the court of first instance, you can also appeal to a higher court.

4. The way to close the case is different. Administrative reconsideration may be mediated by the administrative organ for the applicant and the respondent, and the applicant and the applicant may also voluntarily reach a settlement; Mediation is not applicable to administrative litigation.

5. The content of the trial is different. Administrative reconsideration should not only examine the legality of specific administrative acts, but also examine their appropriateness; In principle, administrative litigation only examines the legality of specific administrative acts.

6. There is no charge for administrative reconsideration; Administrative Litigation Fees.

Administrative Litigation Law of the People's Republic of China

Article 44: Citizens, legal persons, or other organizations may first apply to the administrative organs for reconsideration of administrative cases that fall within the scope of the people's courts' acceptance, and where they are not satisfied with the reconsideration decision, they may then file a lawsuit with the people's courts; You can also file a lawsuit directly with the people's court.

Where laws or regulations provide that an application for reconsideration shall be made to an administrative organ first, and where a lawsuit is filed in a people's court after being dissatisfied with the reconsideration decision, follow the provisions of the laws and regulations.

Article 45: Where citizens, legal persons, or other organizations are dissatisfied with a reconsideration decision, they may file a lawsuit with the people's court within 15 days of receiving the reconsideration decision. If the reconsideration organ fails to make a decision within the time limit, the applicant may file a lawsuit with the people's court within 15 days of the expiration of the reconsideration period. Except as otherwise provided by law.

Although there are many similarities between administrative reconsideration and Xingsui Hu Lianzheng litigation, Bi Zuozheng is actually two different ways to resolve administrative disputes, and there are obvious differences between them, which is mainly reflected in:

1. The processing organs are different. The organs handling administrative reconsideration and administrative litigation are different, the former is an administrative organ, and the latter is a people's court, that is, a judicial organ.

2. The nature is different. The difference in the nature of their acts is determined by the difference in the handling organs: the reconsideration act of the administrative reconsideration organ is an administrative act, which is a hierarchical supervision system within the administrative organ, and for the counterpart, it is a means of administrative relief; However, the people's court's trial of Hu Sun's administrative case is a judicial activity, which is the people's court's supervision of the administrative organ, and the people's court's judicial review of administrative acts in the exercise of judicial power, which is a means of litigation relief for the administrative counterpart.

The former is regulated by the Administrative Procedure Law, i.e., the Administrative Reconsideration Law, while the latter is governed by the Procedural Law, i.e., the Administrative Litigation Law.

3. The scope of the case is different. The scope of administrative reconsideration is greater than the scope of administrative litigation. If it is within the scope of administrative litigation, it must be within the scope of administrative reconsideration; However, if it falls within the scope of administrative reconsideration, it may not be within the scope of administrative litigation.

The scope of administrative litigation is limited to personal rights and property rights: in addition to the infringement of personal rights and property rights by administrative acts, the scope of administrative reconsideration also includes the infringement of the right to education and other rights.

4. The review standards are different. Both administrative reconsideration and administrative litigation take specific administrative acts as the object of review, but their review standards are different. Administrative reconsideration examines the legality and appropriateness of specific administrative acts; In principle, administrative litigation only reviews the legality of specific administrative acts, and does not review inappropriate specific administrative acts.

In addition, the Administrative Reconsideration Law has expanded the scope of applications for reconsideration, so that the legitimate rights and interests of citizens, legal persons, or other organizations are more comprehensively protected.

Article 25 of the Administrative Litigation Law provides that where a citizen, legal person or other organization directly initiates a lawsuit in a people's court, the administrative organ that took the specific administrative act is the defendant.

In cases that have been reconsidered, and the reconsideration organ decides to uphold the original specific administrative act, the administrative organ that took the original specific administrative act is the defendant; Where the reconsideration organ changes the original specific administrative act, the reconsideration organ is the defendant.

Where two or more administrative organs take the same specific administrative act, the administrative organ that jointly took the specific administrative act is a joint defendant.

For specific administrative acts taken by an organization authorized by laws or regulations, the organization is the defendant. For specific administrative acts taken by an organization entrusted by an administrative organ, the entrusting administrative organ is the defendant.

Where an administrative organ is revoked, the administrative organ that continues to exercise its functions and powers is the defendant.