Administrative reconsideration is an important legal system for resolving administrative disputes, and its main function is to prevent and correct illegal or improper administrative acts and protect the legitimate rights and interests of citizens, legal persons and other organizations. The newly revised Administrative Reconsideration Law actively responds to social concerns, is conducive to protecting the legitimate rights and interests of the people, promoting the construction of government rule of law, and promoting social fairness and justice, which is of great significance for improving the efficiency of social governance.
In order to facilitate your understanding and application, in this issue, we will sort out the newly revised Administrative Reconsideration Law from the perspective of administrative reconsideration trial procedures, and take a look at the key points and highlights worthy of attention.
1. Adjust the scope of participants in administrative reconsideration
The new Administrative Reconsideration Law clearly stipulates the criteria for determining the applicant for administrative reconsideration and the transfer of qualifications, which is more accurate and concise than the language of the old law. Establish an administrative reconsideration representative system to meet the needs of administrative reconsideration practice and improve the main body system of administrative reconsideration in the mainland; Adjust the scope of participants in administrative reconsideration and add personnel who "have an interest in the handling of administrative reconsideration"; A new legal aid system for administrative reconsideration has been added to provide legal aid to them in accordance with the law; Drawing on the provisions of the Administrative Litigation Law, clarifying the scope of the respondent in administrative reconsideration aims to help the applicant improve the efficiency of applying for administrative reconsideration.
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Article 14: Citizens, legal persons or other organizations applying for administrative reconsideration in accordance with this Law are applicants.
If a citizen who has the right to apply for administrative reconsideration dies, his close relatives may apply for administrative reconsideration. Where a legal person or other organization that has the right to apply for administrative reconsideration is terminated, the successor of its rights and obligations may apply for administrative reconsideration.
Where a citizen who has the right to apply for administrative reconsideration is a person who lacks or has limited capacity for civil conduct, his or her legal representative may apply for administrative reconsideration on his or her behalf.
Article 15: Where there are a large number of applicants for the same administrative reconsideration case, the applicant may elect a representative to participate in the administrative reconsideration.
The representative's participation in administrative reconsideration shall take effect on the applicant he represents, but if the representative changes the request for administrative reconsideration, withdraws the application for administrative reconsideration, or recognizes the request of a third party, it shall be subject to the consent of the applicant being represented.
Article 16 Citizens, legal persons, or other organizations other than the applicant that have an interest in the outcome of the administrative act or administrative reconsideration case for which administrative reconsideration is applied for may apply to participate in administrative reconsideration as a third party, or the administrative reconsideration organ may notify them to participate in administrative reconsideration as a third party.
The fact that a third party does not participate in the administrative reconsideration does not affect the trial of the administrative reconsideration case.
Article 17: Applicants and third parties may retain one or two lawyers, basic-level legal service workers, or other agents to participate in administrative reconsideration on their behalf.
Where the applicant or a third party entrusts an agent, the power of attorney and the identity documents of the principal and the entrusted person shall be submitted to the administrative reconsideration organ. The power of attorney shall clearly indicate the matters to be entrusted, the scope of authority, and the time period. Where the applicant or a third party changes or removes the authority of the agent, the administrative reconsideration organ shall be notified in writing.
Article 18: Where applicants for administrative reconsideration who meet the requirements for legal aid apply for legal aid, the legal aid institution shall provide them with legal aid in accordance with law.
Article 19: Where citizens, legal persons, or other organizations are dissatisfied with an administrative act and apply for administrative reconsideration, the administrative organ that took the administrative act or the organization authorized by laws, regulations, or rules is the respondent.
Where two or more administrative organs take the same administrative act in a common name, the administrative organ that jointly took the administrative act is the respondent.
Where an organization entrusted by an administrative organ takes an administrative act, the entrusting administrative organ is the respondent.
Where the administrative organ that took the administrative act is revoked or its functions and powers are changed, the administrative organ that continues to exercise its authority is the respondent.
2. Adjust the time limit and method of administrative reconsideration
The new Administrative Reconsideration Law further clarifies the time limit for accepting administrative reconsideration, stipulates the general application time limit and the maximum application time limit for administrative reconsideration, and solves the controversial issues regarding the time limit for acceptance of administrative reconsideration cases in previous practice. At the same time, the application method for administrative reconsideration has been revised to take written application as the principle and oral application as an exception, and at the same time, in combination with the development of the Internet era, a new online application method has been added to facilitate the people to apply for administrative reconsideration and demonstrate the concept of justice for the people.
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Article 20: Where citizens, legal persons, or other organizations believe that an administrative act infringes upon their lawful rights and interests, they may submit an application for administrative reconsideration within 60 days from the date on which they knew or should have known of the administrative act; However, the application period stipulated by law exceeds 60 days.
Where the statutory application time limit is delayed due to force majeure or other legitimate reasons, the application time limit shall continue to be calculated from the date on which the obstacle is removed.
Where an administrative organ fails to inform citizens, legal persons, or other organizations of their right to apply for administrative reconsideration, the administrative reconsideration organ, and the time limit for applying for administrative reconsideration when taking an administrative act, the application period shall be calculated from the date on which the citizen, legal person, or other social organization knows or should know the right, the administrative reconsideration organ, and the time limit for applying for administrative reconsideration, but the maximum period from the date on which the citizen, legal person, or other social organization knows or should know the content of the administrative act shall not exceed one year.
Article 21 Where an application for administrative reconsideration due to immovable property has been filed for more than 20 years since the date of the administrative act, and other applications for administrative reconsideration have been filed for more than five years since the date of the administrative act, the administrative reconsideration organ shall not accept it.
Article 22 The applicant may apply for administrative reconsideration in writing; If it is difficult to apply in writing, it is also possible to apply orally.
Where an application is made in writing, an application for administrative reconsideration may be submitted by mail or through an Internet channel designated by the administrative reconsideration organ, or an application for administrative reconsideration may also be submitted in person. Where administrative organs deliver written decisions on administrative acts through Internet channels, they shall simultaneously provide Internet channels for submitting applications for administrative reconsideration.
In the case of an oral application, the administrative reconsideration organ shall record on the spot the applicant's basic information, the request for administrative reconsideration, and the main facts, reasons, and time for applying for administrative reconsideration.
If the applicant is dissatisfied with two or more administrative acts, he shall apply for administrative reconsideration separately.
3. Improve the procedures for applying for and accepting administrative reconsideration
The new Administrative Reconsideration Law adheres to the concept of putting the people first, closely focuses on the requirements of the "convenience for the people" system, improves the acceptance procedures for administrative reconsideration applications, and adds a number of measures to facilitate the people to protect the rights of the parties. Clarify the conditions for accepting administrative reconsideration, add a system for supplementing and correcting application materials, facilitate the people to resolve administrative disputes through administrative reconsideration channels in a timely manner, and create a convenient and efficient "system business card" for administrative reconsideration.
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Article 30: After receiving an application for administrative reconsideration, an administrative reconsideration organ shall conduct an examination within five days. Where the following provisions are met, the administrative reconsideration organ shall accept the case:
(1) There is a clear applicant and an respondent who meets the requirements of this Law;
(2) The applicant has an interest in the administrative act for which the administrative reconsideration is sought;
(3) There is a specific request for administrative reconsideration and reasons;
(4) Submit the application within the statutory time limit;
(5) It falls within the scope of administrative reconsideration provided for in this Law;
(6) It is within the jurisdiction of that organ;
(7) The administrative reconsideration organ has not accepted the applicant's application for administrative reconsideration in respect of the same administrative act, and the people's court has not accepted the administrative lawsuit filed by the applicant in respect of the same administrative act.
For administrative reconsideration applications that do not comply with the provisions of the preceding paragraph, the administrative reconsideration organ shall decide not to accept the application within the time limit for review and explain the reasons; Where it is not within the jurisdiction of that organ, the applicant shall also be informed of the administrative reconsideration organ with jurisdiction in the decision not to accept the application.
If the administrative reconsideration organ fails to make a decision not to accept an application for administrative reconsideration upon the expiration of the time limit for examination, it shall be deemed to have been accepted on the date of the expiration of the time limit for examination.
Article 31: Where the materials for an administrative reconsideration application are incomplete or unclear, and it is impossible to judge whether an application for administrative reconsideration complies with the provisions of the first paragraph of Article 30 of this Law, the administrative reconsideration organ shall notify the applicant in writing to supplement and correct the application within five days of receiving the application. The notice of supplementation and correction shall indicate the matters that need to be supplemented and corrected at one time.
The applicant shall submit the supplementary materials within 10 days from the date of receipt of the notice of supplementation and correction. If there is a legitimate reason why it cannot be supplemented and corrected on time, the administrative reconsideration organ may extend the reasonable time limit for supplementation and correction. If the applicant fails to make corrections within the time limit without a legitimate reason, it shall be deemed that the applicant has given up the application for administrative reconsideration and shall be recorded in the case file.
After the administrative reconsideration organ receives the supplementary and corrective materials, it shall handle it in accordance with the provisions of Article 30 of this Law.
4. Improve the procedures for administrative reconsideration trials
The new Administrative Reconsideration Law changes the original single review model, separates complicated and simple administrative reconsideration cases according to the complexity of administrative reconsideration cases, and adds a new summary procedure for administrative reconsideration to achieve quick trial of simple cases and intensive trial of complex cases, and improve the quality and efficiency of case handling; It is clarified that the basis for the reconsideration organ to hear the case can only be laws, regulations, and rules; Establish provisions on the transfer of jurisdiction in administrative reconsideration cases, and establish a system for escalating the level of trial.
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Article 36: After an administrative reconsideration organ accepts an application for administrative reconsideration, it shall apply the ordinary procedures or summary procedures to conduct a trial in accordance with this Law. Administrative reconsideration organs shall designate administrative reconsideration personnel to be responsible for handling administrative reconsideration cases.
Administrative reconsideration personnel shall keep confidential the state secrets, commercial secrets, and personal privacy that they learn of in the course of handling administrative reconsideration cases.
Article 37: Administrative reconsideration organs hear administrative reconsideration cases in accordance with laws, regulations, and rules.
Administrative reconsideration organs hear administrative reconsideration cases in ethnic autonomous areas, and at the same time follow the autonomy regulations and special regulations of the ethnic autonomous areas.
Article 38: Higher-level administrative reconsideration organs may, as needed, hear administrative reconsideration cases under the jurisdiction of lower-level administrative reconsideration organs.
If a lower-level administrative reconsideration organ finds that an administrative reconsideration case under its jurisdiction needs to be heard by a higher-level administrative reconsideration organ, it may report it to the higher-level administrative reconsideration organ for a decision.
Article 39: In any of the following circumstances during the period of administrative reconsideration, administrative reconsideration shall be suspended:
(1) The citizen who is the applicant has died, and his close relatives have not yet determined whether to participate in the administrative reconsideration;
(2) The citizen who is the applicant has lost the capacity to participate in the administrative reconsideration, and the legal representative has not yet been determined to participate in the administrative reconsideration;
(3) The whereabouts of the citizen who is the applicant are unknown;
(4) The legal person or other organization that is the applicant is terminated, and the successor of rights and obligations has not yet been determined;
(5) The applicant or respondent is unable to participate in the administrative reconsideration due to force majeure or other legitimate reasons;
(6) Mediation or conciliation shall be conducted in accordance with the provisions of this Law, and the applicant and the respondent shall agree to suspend it;
(7) The application of law involved in an administrative reconsideration case requires an explanation or confirmation by the competent authority;
(8) The trial of an administrative reconsideration case needs to be based on the trial results of other cases, and the trial of other cases has not yet been concluded;
(9) There are circumstances provided for in articles 56 or 57 of this Law;
(10) Other circumstances that require the suspension of administrative reconsideration.
After the reasons for the suspension of administrative reconsideration are eliminated, the trial of the administrative reconsideration case shall be resumed in a timely manner.
Administrative reconsideration organs shall notify the parties in writing of the suspension or resumption of the trial of administrative reconsideration cases.
Article 53: Where administrative reconsideration organs hear the following administrative reconsideration cases, where they find that the facts are clear, the relationship between rights and obligations is clear, and the controversy is not large, they may apply the summary procedures:
(1) The administrative act for which administrative reconsideration is applied is made on the spot;
(2) The administrative act for which administrative reconsideration is applied is a warning or a notice of criticism;
(3) The amount involved in the case is less than 3,000 RMB;
(4) It is an open government information case.
In administrative reconsideration cases other than those provided for in the preceding paragraph, where the parties agree to apply the simplified procedures, the simplified procedures may be applied.
Article 54: In administrative reconsideration cases that are tried under the simplified procedures, the administrative reconsideration organ shall, within three days from the date of accepting 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 five days from the date of receipt of a copy of the application for administrative reconsideration or a copy of the record of the application for administrative reconsideration, submit a written reply and submit the evidence, basis and other relevant materials for the administrative act.
Administrative reconsideration cases that apply the summary procedures may be tried in writing.
Article 55: In an administrative reconsideration case that is tried using the summary procedures, if the administrative reconsideration organ finds it inappropriate to apply the summary procedures, it may be transferred to ordinary procedures for trial with the approval of the responsible person of the administrative reconsideration body.
5. Optimize the rules of evidence for administrative reconsideration
New provisions on the types of evidence for administrative reconsideration have been added, and rules for evidence for administrative reconsideration have been improved; Clarify the burden of proof for administrative reconsideration, with the respondent presenting evidence as the principle, with the exception of the applicant's proof; It clarifies the requirements for the collection of evidence and procedures for the investigation of administrative reconsideration, restricts the respondent from collecting evidence and supplementing evidence on its own, and protects the rights of the applicant, which embodies the people-centered concept.
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Article 43: Evidence for administrative reconsideration includes:
(1) Documentary evidence;
(2) Physical evidence;
(3) audio-visual materials;
(4) Electronic data;
(5) Witness testimony;
(6) the statements of the parties;
(7) Appraisal opinions;
(8) Inquest records and on-site records.
Only when the above evidence is found to be true after examination by the administrative reconsideration organ can it be used as the basis for determining the facts of an administrative reconsideration case.
Article 44 The respondent bears the burden of proof for the legality and appropriateness of the administrative acts it has taken.
In any of the following circumstances, the applicant shall provide evidence:
(1) Where it is found that the respondent has not performed its legally-prescribed duties, it shall provide evidence that the respondent has been required to perform its legally-prescribed duties, except where the respondent shall take the initiative to perform the legally-prescribed duties ex officio or the applicant is unable to provide it for legitimate reasons;
(2) Where a request for administrative compensation is submitted, evidence of the damage caused by the infringement of the administrative act is provided, but where the applicant is unable to present evidence due to reasons attributable to the respondent, the respondent bears the burden of proof;
(3) Other circumstances where laws and regulations provide that the applicant needs to provide evidence.
Article 45: Administrative reconsideration organs have the right to investigate and collect evidence from relevant units and individuals, to consult, reproduce, and obtain relevant documents and materials, and to inquire about relevant personnel.
When investigating and collecting evidence, there shall be no less than two administrative reconsideration personnel, and they shall present their administrative reconsideration work certificates.
Units and individuals under investigation and collecting evidence shall actively cooperate with the work of administrative reconsideration personnel and must not refuse or obstruct them.
Article 46: During the period of administrative reconsideration, the respondent shall not collect evidence from the applicant and other relevant units or individuals on its own; Self-collected evidence is not to be used as a basis for determining the legality and appropriateness of administrative acts.
During the period of administrative reconsideration, if the applicant or a third party submits that the administrative act for which administrative reconsideration is applied for was made without the reasons or evidence submitted, the respondent may supplement the evidence with the consent of the administrative reconsideration body.
Source: Beijing Municipal People's Procuratorate No. 2 Branch