China s administrative reconsideration trial system and trial process

Administrative reconsideration refers to a system in which a party concerned has an opinion on an administrative organ's administrative decision and submits a request to the administrative organ for a new disposition. It is a method for citizens to fight lawsuits with **, but the place of litigation is not in the court, but in the administrative organ. Administrative reconsideration has the following four characteristics:

1) The person who submits the reconsideration must be a party who is dissatisfied with the decision of the administrative organ.

2) The parties must file an administrative reconsideration after the administrative organ has made an administrative decision, and if the administrative organ has not made a decision, there is no issue of reconsideration. The task of reconsideration is to resolve administrative disputes, not civil or other disputes.

3) If a party is dissatisfied with the administrative decision of an administrative organ, he or she may only apply for reconsideration to the administrative organ with the power of administrative reconsideration in accordance with the provisions of the law.

4) Administrative reconsideration does not require the presence of the parties, and is mainly based on written review and non-mediation. After the conclusion of the administrative reconsideration is made, it has legal effect, while the original administrative decision becomes invalid. If the parties are still not satisfied with this, they may submit a lawsuit to the people's court in accordance with the provisions of the Administrative Litigation Law.

The trial process was:

Submit an application for administrative reconsideration.

Review of the request for reconsideration.

if it is not within the scope of administrative reconsideration, a written decision of inadmissibility shall be issued within 5 working days from the date of receipt of the application;

If it is accepted by the county**, a notice of acceptance and a notice of reply shall be issued within 7 working days from the date of acceptance of the application;

If it is within the scope of administrative reconsideration, but is not accepted by the county, an administrative reconsideration notice shall be issued within 5 working days from the date of receipt of the application.

Reconsideration Response. The respondent shall submit a written reply within 10 days from the date of receipt of the notice of reply, and submit the evidence, basis and other relevant materials for the specific administrative act taken at the beginning.

Reconsideration Review. Conduct a written review of reconsideration cases with clear facts and simple facts;

Conduct investigation and understanding according to the needs of case review;

According to the requirements of the applicant and the third party, the relevant parties are convened to conduct cross-examination.

Put forward suggestions for handling.

According to the facts and legal provisions, the administrative reconsideration personnel shall put forward their handling opinions;

If the reasons for the applicant's withdrawal of the application are sustained, the administrative reconsideration shall be terminated.

Make an administrative reconsideration decision (usually made within 60 days).

For cases where the facts are clear and the application of law is accurate, and should be maintained, or cases in which a decision is to be made to revoke, modify, or confirm the illegality of a specific administrative act, it shall be submitted to the county for research and decision.

Administrative reconsideration is a review, not a trial, and only judicial organs have the right to hear it.

The administrative party informs the right of reconsideration, the right holder submits an application, the respondent responds in writing, and the authority reconsiders in accordance with the law and makes a reconsideration decision.

It's as simple as that

Answer]: The trial process of administrative reconsideration mainly includes the following points:

1) Preparation before the examination. The organ responsible for legal work of the administrative reconsideration organ shall, within 7 days from the date of acceptance of the application for administrative reconsideration, send a copy of the application for administrative reconsideration or a copy of the record of the application for administrative reconsideration to the respondent. The respondent shall, within 10 days from the date of receipt of a copy of the application or a copy of the application record, submit a written reply and submit the evidence, basis and other relevant materials for the specific administrative act at the time.

2) Review method. In principle, administrative reconsideration shall adopt the method of written examination, but when the applicant for promotion to the top submits a request or the organ responsible for legal work of the administrative reconsideration organ deems it necessary, it may investigate the situation with relevant organizations and personnel and listen to the opinions of the applicant, the respondent, and the third party. When a specific administrative act is made, it must be supported by sufficient evidence, so in the process of administrative reconsideration, the respondent shall not collect evidence from the applicant and other relevant organizations or individuals on its own.

If the applicant requests to withdraw the application for administrative reconsideration before the administrative reconsideration decision is made, it may be withdrawn after explaining the reasons; Where the application for administrative reconsideration is withdrawn, the administrative reconsideration shall be terminated.

3) Review of the basis of specific administrative acts. When applying for administrative reconsideration, if the applicant submits an application for review of the provisions of the department, the local people's work departments at or above the county level, and the provisions of the township people, if the administrative reconsideration organ has the right to deal with the provisions, it shall be handled in accordance with the law within 30 days; If the administrative reconsideration organ does not have the authority to handle the matter, it shall, within 7 days, in accordance with legal procedures, transfer it to the administrative organ that has the authority to handle the matter and handle it in accordance with the law, and the administrative organ that has the authority to handle it shall make a clear judgment to handle it in accordance with the law within 60 days. During the processing period, the review of specific administrative acts is suspended.

If the administrative reconsideration organ finds that the basis of the specific administrative act taken by the respondent is unlawful and that the organ has the right to handle it, it shall handle it in accordance with the law within 30 days; and where they do not have the authority to handle it, they shall be transferred to the state organ that has the authority to handle it in accordance with legally-prescribed procedures within 7 days to handle it in accordance with law. During the processing period, the review of specific administrative acts is suspended.

4) Review period. The administrative reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of acceptance of the application; However, the time limit for administrative reconsideration provided by law is less than 60 days. If the situation is complicated and an administrative reconsideration decision cannot be made within the prescribed time limit, it may be appropriately extended with the approval of the person in charge of the administrative reconsideration organ, and the applicant and the respondent shall be notified; However, the extension period shall not exceed 30 days.

According to Article 22 of the "Administrative Reconsideration Law," administrative reconsideration shall in principle adopt the method of written examination, but when the applicant makes a request or the organ responsible for legal work within the administrative reconsideration organ deems it necessary, it may investigate the situation with relevant organizations and personnel and hear the opinions of the applicant, the respondent, and a third party.

For administrative reconsideration cases that meet the scope of acceptance, the administrative reconsideration organs shall, after accepting them, conduct a trial in accordance with law. Legally and promptly concluding reconsideration cases is an important part of administrative reconsideration.

The trial method of reconsideration cases is based on the principle of written trial, supplemented by other trial methods.

1) Written trial. The so-called written trial refers to the method whereby the administrative reconsideration organ, when examining the specific administrative act for which the applicant is applied for reconsideration, takes the relevant materials submitted by the applicant and the respondent as the basis, and no longer conducts face-to-face examination and cross-examination debate, and directly makes an administrative reconsideration decision. In the case of written examination, the applicant does not have to go to the administrative reconsideration organ in person to state the situation, but may file a request for administrative reconsideration by letter, fax, or other means, and attach all the relevant requests, evidence, and other relevant materials.

In this way, citizens, legal persons, or other organizations can be exempted from going back and forth, reducing costs, and it is also convenient for administrative reconsideration organs to save time and handle cases more quickly. The written trial method embodies the principle of convenience and timeliness of administrative reconsideration. However, the written review is more dependent on the materials and has higher requirements.

Therefore, in order for a written trial to be truly effective, citizens, legal persons or other organizations should provide sufficient facts andLegal basisThe respondent must submit all the evidentiary basis and other materials for the specific administrative act at the beginning, and submit them to the reconsideration organ in a timely manner in accordance with the statutory time limit, otherwise it will be difficult for the administrative reconsideration organ to make a legal and reasonable administrative reconsideration decision based on the written materials.

2) Other trial methods. The so-called other adjudication methods are methods whereby administrative reconsideration organs, when examining specific administrative acts that have been corrected and simplified for administrative reconsideration, not only examine the relevant materials submitted by the applicant and the respondent, but also conduct investigations, collect evidence, and listen to the opinions and debates of the applicant, the respondent, or a third party, and then make an administrative reconsideration decision.

Legal basis

Article 22 of the Administrative Reconsideration Law of the People's Republic of China stipulates that administrative reconsideration shall in principle adopt the method of written examination, but when the applicant makes a request or the administrative reconsideration organ Bi Qing Shiguan deems it necessary, it may investigate the situation with relevant organizations and personnel, and listen to the opinions of the applicant, the subject of the application for reconsideration, and a third party.

1. Adopt the method of written review. 2. When the applicant makes a request or the administrative reconsideration organ in charge of legal work deems it necessary, it may investigate the situation with the relevant organizations and personnel and listen to the opinions of the applicant, the respondent, and the third party. 3. Legal basis: Administrative reconsideration trial in the Administrative Reconsideration Law:

In principle, administrative reconsideration shall be conducted by means of written examination, but when the applicant makes a request or the organ of the administrative reconsideration organ in charge of the work of the legal reconsideration system deems it necessary, it may investigate the situation with the relevant organizations and personnel and hear the opinions of the applicant, the respondent, and the third party.

The rules of evidence and the withdrawal of the reconsideration application will give you a detailed introduction to the general trial process of administrative reconsideration. 1. Reconsideration Body: The body responsible for legal work in the reconsideration organ (i.e., the administrative reconsideration body).

Note that more than 2 reconsideration personnel are required to participate. 2. Reconsideration method: In principle, written review is implemented.

If the applicant makes a request or the reconsideration organ deems it necessary, it may investigate and collect evidence and hear the opinions of the parties, and major and complex cases may be tried ex officio or upon application. 3. Rules of Evidence for Reconsideration (1) Burden of Proof The respondent bears the main burden of proof. The specific procedure is as follows:

The reconsideration agency notifies the respondent (a copy of the application form will be sent within 7 days) - the respondent shall reply in writing and submit evidence to keep an eye on the report (within 10 days). (Article 23, Paragraph 1) Consequences of the respondent's late submission of evidence: The late submission of evidence shall be deemed to be without evidence, and the reconsideration organ shall revoke its acts.

Article 28, Paragraph 1 (4) The applicant only bears the burden of proof on the issue of dispersion: (1) if it believes that the respondent has failed to act, it shall provide supporting materials that it has been required to perform its duties but has not performed it; (2) Where a request for administrative compensation is submitted at the same time, proof of the damage is to be provided; Third, in other circumstances provided for by laws and regulations, it should be noted that the rules do not have the right to stipulate. (Article 21 of the Reconsideration Regulations) (2) Evidence Collection The reconsideration organ may take the initiative to investigate and collect evidence.

During the reconsideration period, the respondent shall not collect evidence on its own. In this regard, the following three points should be noted: first, it is limited to the reconsideration process, that is, the period from the acceptance of the reconsideration application to the completion of the implementation of the reconsideration decision; Second, evidence must not be collected on its own, but evidence may be collected with the approval of the reconsideration organ; Third, it is the same as the administrative litigation provisions.

The applicant and the third party have the right to check.

According to the basic principle of administrative reconsideration, combined with the practice of administrative reconsideration and the provisions of relevant laws, the basis for administrative reconsideration organs to hear reconsideration cases includes the following:

1) Laws. The law here refers specifically to the legal documents formulated by the National People's Congress and its Standing Committee in accordance with legislative procedures. The law is second only to the Constitution in force and is universally binding throughout the country. Administrative reconsideration organs should first take the law as the basis for hearing reconsideration cases.

2) Administrative regulations. Administrative regulations are legal documents formulated in accordance with the functions and powers conferred by the Constitution and laws. Administrative regulations are an important criterion for the activities of administrative organs at all levels of the state, and they are also the criteria for judging the correctness of administrative acts.

3) Local regulations. refers to the legal documents that are effective in their respective administrative regions formulated by the people's congresses of provinces, autonomous regions, and municipalities directly under the Central Government and their standing committees in accordance with the law, on the premise that they do not contradict laws and administrative regulations. It also includes the people's congresses and their standing committees of provincial capitals, approved larger cities, and special economic zone cities specially authorized by the Standing Committee of the National People's Congress in light of local conditions, and on the premise of not violating laws and administrative regulations, formulating and submitting to the Standing Committee of the Provincial People's Congress for approval to implement legal documents locally.

4) Administrative regulations. Administrative rules refer to universally binding legal documents formulated and issued by administrative organs with statutory authority within the scope of statutory authority. Rules must not contradict laws and regulations.

Regulations can be divided into departmental rules and local regulations. When administrative reconsideration organs hear reconsideration cases, in addition to applying laws and regulations, they also apply administrative rules.

5) Decisions, orders. refers to other normative documents other than rules formulated and issued by administrative organs in accordance with law. Decisions and orders, as an important supplement to laws, rules and regulations, play an important role in ensuring the application of laws, rules and regulations in their own departments and regions.

Normative documents such as decisions and orders are the basis for administrative organs to make specific administrative acts, and are also the basis for administrative reconsideration. However, when examining specific administrative acts made on the basis of these documents, the reconsideration organs may also examine the legality of these normative documents themselves.

6) Autonomous regulations and separate regulations. The autonomy regulations are comprehensive regulations formulated by the people's congresses and their standing committees of ethnic autonomous areas in accordance with the provisions of the Constitution and laws and in light of the political, economic, and cultural characteristics of the ethnic groups to ensure that the system of regional ethnic autonomy can be fully implemented in the region. Regulations on single omissions or disturbances are regulations formulated by the people's congresses and their standing committees of ethnic autonomous areas in accordance with the law in order to solve problems in a certain area in light of the local ethnic characteristics.

Autonomy regulations and special regulations are generally binding in ethnic autonomous areas, and reconsideration organs hearing reconsideration cases in ethnic autonomous areas should be based on the autonomy regulations and special regulations of ethnic autonomous areas in addition to laws and regulations. The appeal is the basis for the hearing of the administrative reconsideration.