Although administrative reconsideration and administrative litigation are two different rights remedies, this does not affect the close connection between them. Administrative reconsideration and administrative litigation are both legal systems for resolving administrative disputes, supervising the administrative management of administrative agencies, and providing relief to administrative counterparts who are harmed by illegal and improper administrative behaviors. The connection between administrative reconsideration and administrative litigation is mainly reflected in: < /p>
① The basis is the same. They are all based on the existence of administrative disputes and the legal system used to resolve disputes.
② The purpose and function are the same. They are all intended to prevent and correct illegal and improper specific administrative actions, protect the legitimate benefits of citizens, legal persons and other organizations, and ensure and supervise the administration of administrative agencies in accordance with the law.
③ The objects of review are basically the same. Administrative review and administrative litigation both deal with administrative disputes and review whether specific administrative actions are legal. However, the review agency is an administrative agency, so the scope of review is wider. The rationality of specific administrative actions can be reviewed at the same time, as well as the normative documents below regulations that serve as the basis for specific administrative actions. Administrative review and administrative litigation are designed to resolve administrative disputes, not civil disputes. Both aim to protect the legitimate rights and interests of citizens, legal persons or other organizations, and to safeguard and supervise the exercise of powers by administrative agencies in accordance with the law.
④ The conditions are the same. They are all activities initiated upon application. The initiation of both procedures depends on the application of the counterparty.
⑤ Administrative reconsideration and administrative litigation are both rights remedies. Both supervise the specific administrative actions of administrative subjects and correct illegal and improper actions. Administrative reconsideration and administrative litigation are both relief acts, and both are ex post facto and subject to application. That is, they are both a means of supervision after the fact, and they are subject to the filing of the administrative counterparty as a prerequisite.
⑥ The legal relationship is similar. In the process of resolving disputes, the administrative review agency and the People's Court are both intermediate adjudicators. Therefore, administrative review falls within the scope of administrative justice and has many similarities with the trial activities of the courts.
⑦ Administrative reconsideration and administrative litigation are initiated by citizens, legal persons or other organizations. As the party exercising administrative power, the administrative agency has no right to initiate them. Both of them apply the principle of not complaining and not responding, and both are actions based on application. Respondents or defendants in administrative reconsideration and administrative litigation are state administrative agencies that enjoy state administrative powers and take administrative actions.
⑧ The principles and procedures applicable to administrative reconsideration and administrative litigation also have many similarities. The scope of cases accepted by the two is basically the same, and the types of awards and enforcement methods they make are also basically the same. The principles that the execution of the original specific administrative act will not be suspended, the administrative agency shall bear the burden of proof, and mediation shall not apply, etc., apply in both administrative reconsideration and administrative litigation.
Although administrative review and administrative litigation have many similarities, they are two different ways to resolve administrative disputes, and there are obvious differences between them. This is mainly reflected in:
1. The processing agencies are different. Administrative reconsideration and administrative litigation are handled by different agencies. The former is an administrative agency, and the latter is a people's court, that is, a judicial agency.
2. Different properties. The difference in handling agencies determines the difference in the nature of their actions: the reconsideration behavior of the administrative reconsideration agency is an administrative act. It is a hierarchical supervision system within the administrative agency. For the counterparty, it is a means of administrative relief; The activities of the People's Court hearing administrative cases are judicial activities, which are the People's Court's supervision activities of administrative agencies and the People's Court's exercise of judicial power over administrative actions. It is a means of litigation relief for the administrative counterpart. The former is governed by the Administrative Procedure Law, the Administrative Reconsideration Law, while the latter is governed by the Procedure Law, the Administrative Litigation Law.
3. The scope of cases is different. The scope of administrative review is greater than the scope of administrative litigation. If it falls within the scope of administrative litigation, it must fall within the scope of administrative reconsideration; but if it falls within the scope of administrative reconsideration, it may not necessarily fall within the scope of administrative litigation. The scope of administrative litigation is limited to personal rights and property rights: in addition to infringements of personal rights and property rights by administrative actions, the scope of administrative reconsideration also includes infringements of the right to education and other rights.
4. The review standards are different. Administrative reconsideration and administrative litigation both review specific administrative actions, but their review standards are different.
Administrative reconsideration reviews whether specific administrative actions are legal and appropriate; administrative litigation in principle only reviews whether specific administrative actions are legal, and inappropriate specific administrative actions will not be reviewed. In addition, the Administrative Reconsideration Law has expanded the scope of applications for reconsideration, and the legitimate rights and interests of citizens, legal persons or other organizations are more comprehensively protected.
5. The trial methods and trial systems are different. Administrative reconsideration is a supervisory system for superiors to subordinates within administrative agencies. It is the supervision of high-level administrative powers over lower-level administrative powers. Therefore, supervision is comprehensive and is not limited to the review of the legality of specific administrative actions, but also includes the review of the rationality of specific administrative actions. It even includes not only the review of specific administrative actions, but also the review of administrative normative documents below regulations that serve as the basis for specific administrative actions. Administrative reconsideration generally implements a written reconsideration system, which means that when the reconsideration agency hears a reconsideration case, it only examines the written materials of the administrative case and does not summon the applicant, respondent, witnesses or other review participants to appear in court. This can save money. Time, energy and expense; and administrative litigation generally does not implement a written trial system, and both parties must appear in court to defend each other. Administrative reconsideration implements a first-level review system, which means that no further request for reconsideration of the review decision of the review authority is generally allowed; while administrative litigation implements a two-instance and final review system. If the parties are dissatisfied with the first-instance judgment, they may appeal to the higher people's court in accordance with the law. Moreover, administrative litigation is the exercise of judicial power to review administrative actions, and generally only reviews the legality of specific administrative actions. The reasonableness of the exercise of discretion by administrative agencies does not fall within the scope of review.
6. Different processing permissions. The authority of the administrative review agency to resolve disputes during reconsideration is quite different from the authority of the People's Court to resolve disputes in administrative litigation. The administrative review authority conducts a comprehensive review of the legality and rationality of the original specific administrative actions, and can make administrative review decisions such as maintaining, ordering performance, cancellation, change, confirmation, and compensation for losses in accordance with the law. It is common for administrative reconsideration to change the original decision, while administrative litigation can only change administrative penalties that are obviously unjust. This is because, in administrative reconsideration, the reviewing agency and the agency under review belong to the same system (administrative), while in administrative litigation, the reviewing agency is the judicial agency, and the agency being reviewed is the administrative agency, which are the subjects of two different systems. , they are subject to the division of labor between administrative agencies and judicial agencies.
7. The processing basis is different. The trial of administrative reconsideration cases is based on laws, administrative regulations, local regulations, rules, and generally binding decisions and orders formulated and issued by superior administrative agencies; while the trial of administrative litigation cases can only be based on laws, administrative regulations, and Local regulations shall be the basis and administrative regulations shall be the reference.
8. The legal effects are different. Administrative reconsideration generally has no final legal effect. If the counterparty is dissatisfied with the review, he or she may also file an administrative lawsuit. Only when the law stipulates that the review decision is final, the review will have final legal effect, and the counterparty cannot file an administrative lawsuit again. Only the laws of the National People's Congress and its party committee system have the power to stipulate which cases can have the final ruling on administrative reconsideration. The administrative regulations and administrative rules of the administrative agencies' own systems cannot set the final ruling power for themselves. Local regulations also have no power to stipulate the final ruling on administrative reconsideration. Administrative litigation has final legal effect. Regardless of whether there is a case that has gone through administrative review or not, once an administrative lawsuit is filed, the result of the lawsuit is the final result and cannot be reconsidered by the administrative agency. The final judgment of administrative litigation has final legal effect and the parties must comply with it.
How to connect administrative review and administrative litigation? In practice, we often encounter the connection problem between administrative reconsideration and administrative litigation. The connection between the two generally occurs in the following situations:
(1) Administrative review is preceded. That is to say, laws and regulations stipulate that if the specific administrative acts of the counterparty are illegal and infringing and cause disputes, they must first apply for administrative reconsideration. If they are not satisfied with the administrative reconsideration decision, they can file an administrative lawsuit again, and the people's court will resolve the dispute through trial procedures.
(2) The counterparty can either apply for administrative reconsideration first, and then apply for administrative litigation if he is dissatisfied with the administrative reconsideration decision, or he can apply for administrative litigation directly. Of course, if you apply for administrative litigation directly, you cannot apply for administrative litigation again. Because the effectiveness of administrative litigation is higher than the effectiveness of administrative reconsideration.
(3) Administrative review is the final decision.
There are two situations. One is that the law stipulates that the counterparty can choose between reconsideration and litigation. If you choose administrative reconsideration, you can no longer file an administrative lawsuit. For example, both the Exit and Entry Administration Law and the Entry and Exit Administration Law of Foreigners stipulate that Chinese citizens who are punished by the public security organs in accordance with the law and are not satisfied with the punishment can choose administrative reconsideration or administrative litigation. If they choose administrative reconsideration, the reconsideration decision will be It is a final ruling, and no further administrative litigation can be filed; the other is that the law stipulates that only reconsideration is possible, and the reconsideration ruling is the final ruling, and administrative litigation cannot be filed. For example, the Trademark Law stipulates that for administrative disputes in applications for registered trademarks, trademark review The committee has final decision.
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