For the first time in over twenty years! The "Major Revision" of the Administrative Reconsideration Law Passed: Five Highlights Worth Attention

On September 1st, the newly revised Administrative Reconsideration Law was passed by the Fifth Session of the Standing Committee of the 14th National People's Congress and will come into effect on January 1st, 2024.

In April 1999, the 9th meeting of the Standing Committee of the 9th National People's Congress passed the Administrative Reconsideration Law, which underwent two partial revisions in August 2009 and September 2017. It is reported that this revision is the first major overhaul of the Administrative Reconsideration Law in over 20 years.

The newly revised Administrative Reconsideration Law grasps the positioning and characteristics of the administrative reconsideration system, implements the reform deployment, summarizes the reform experience, focuses on improving the credibility and authority of administrative reconsideration, and focuses on solving prominent contradictions that restrict the main channel for resolving administrative disputes in administrative reconsideration, transforming the institutional advantages of administrative reconsideration into institutional efficiency. The revision of the Administrative Reconsideration Law this time adapts to the new requirements of various work and institutional construction in the administrative field in the new development stage, and the highlights of the revised content are diverse.

On September 1st, the 5th meeting of the Standing Committee of the 14th National People's Congress voted to pass the newly revised Administrative Reconsideration Law. Photography/Xu Lin

Highlight 1: Optimizing the Administrative Reconsideration Jurisdiction System to Enhance Unification and Scientificity

Administrative reconsideration jurisdiction refers to the legal system that establishes the division of labor and authority between administrative organs with different functions and levels to accept administrative reconsideration applications and handle administrative reconsideration cases. For the applicant for reconsideration, it is the question of which administrative agency should apply for reconsideration. It can be said that the administrative reconsideration jurisdiction system is the institutional foundation of administrative reconsideration.

The newly revised Administrative Reconsideration Law focuses on building a unified and scientific administrative reconsideration jurisdiction system, mainly making the following provisions: firstly, it clarifies that local people's governments at or above the county level shall exercise administrative reconsideration responsibilities uniformly, and in principle, the administrative reconsideration responsibilities of local people's government departments at all levels shall be abolished. The second is to stipulate that administrative agencies, tax authorities, and national security agencies such as customs, finance, and foreign exchange management that implement vertical leadership shall retain their administrative review responsibilities. The third is to stipulate that the departments of the State Council shall have jurisdiction over the administrative reconsideration cases of their own departments, their dispatched agencies, and authorized organizations as the respondent. The fourth is to make relatively flexible institutional arrangements for the jurisdiction of administrative reconsideration cases under the jurisdiction of the dispatched agencies established by the people's government departments of municipalities directly under the central government and cities divided into districts in accordance with the law. The fifth is to stipulate that if an applicant is dissatisfied with the administrative actions of the judicial administrative department of the local people's government that fulfills the responsibilities of the administrative reconsideration agency, they may apply for administrative reconsideration to the local people's government or to the judicial administrative department at the next higher level.

"In general, the most important modification regarding the jurisdiction system is that, except for special circumstances such as vertical leadership, if the applicant is dissatisfied with the administrative actions taken by the working departments and their dispatched agencies, authorized organizations, etc. of local people's governments at or above the county level, they used to choose to apply for administrative reconsideration to the local people's government or the higher-level competent department, and in principle, they will apply for administrative reconsideration to the local people's government in the future." Liang Ying, Director of the Administrative Law Department of the Standing Committee of the National People's Congress, explained this.

Highlight 2: Enhance the ability of administrative reconsideration to absorb administrative disputes and better play the role of the main channel

The original intention of designing the administrative reconsideration system is to resolve administrative disputes between administrative organs and administrative counterparties through self supervision and error correction of the administrative system, and to protect the legitimate rights and interests of citizens, legal persons, and other organizations.

How to effectively play and demonstrate the role of administrative reconsideration as the main channel for resolving administrative disputes? Strengthening the ability of administrative reconsideration to absorb administrative disputes is crucial.

In this regard, the newly revised Administrative Reconsideration Law has mainly made adjustments in two aspects: expanding the scope of administrative reconsideration and improving the provisions for administrative reconsideration in advance.

On the one hand, expanding the scope of administrative reconsideration and clarifying the following situations, citizens, legal persons, or other organizations can also apply for administrative reconsideration: firstly, they are dissatisfied with the compensation decision or non compensation decision made by the administrative organ; The second is to disagree with the decision made by the administrative authority not to accept the application for work-related injury recognition or the conclusion of work-related injury recognition; Thirdly, it is believed that administrative agencies fail to enter into, fulfill, or illegally modify administrative agreements such as government franchise agreements, land and housing expropriation compensation agreements, etc. in accordance with the law; Fourthly, it is believed that administrative agencies infringe upon their legitimate rights and interests in government information disclosure work.

On the other hand, optimizing the scope of administrative reconsideration, clarifying that those who are dissatisfied with the administrative penalty decision made on the spot, believe that the administrative organ has not fulfilled its legal responsibilities in accordance with the law, or apply for government information disclosure but the administrative organ does not disclose it, should first apply for administrative reconsideration; At the same time, the authority for setting other situations before administrative reconsideration shall be changed from "laws and regulations" to "laws and administrative regulations", and it shall be stipulated that for situations before administrative reconsideration, administrative organs shall inform citizens, legal persons or other organizations to apply for administrative reconsideration to the administrative reconsideration organ first when making administrative actions.

Highlight 3: Multiple convenient measures have been added to effectively protect the rights of parties involved

"Convenience for the people" is an institutional advantage of administrative reconsideration. Effectively achieving "convenience for the people" is not only an inherent requirement of the administrative reconsideration system, but also an important principle that is always upheld in the process of amending the law.

The newly revised Administrative Reconsideration Law closely revolves around the requirements of the "convenience for the people" system, enriches convenience measures in various stages such as application submission, case acceptance, and case trial, facilitates the timely resolution of administrative disputes through administrative reconsideration channels, and creates a convenient and efficient institutional "business card" for administrative reconsideration.

"First, the applicant and the third party can entrust one or two lawyers, grass-roots legal service workers or other agents to participate in the administrative reconsideration on their behalf. Second, if an applicant for administrative reconsideration who meets the conditions for legal aid applies for legal aid, the legal aid institution shall provide legal aid for him according to law. Third, if the administrative organ serves the decision on administrative action through the Internet, it shall also provide the Internet channel for submitting the application for administrative reconsideration. Fourth, if the application materials for administrative reconsideration are incomplete or unclear, and the administrative reconsideration organ is unable to judge whether he meets the conditions for acceptance, it shall notify the applicant in writing to make corrections within five days. Fifth, it is not satisfied with the administrative penalty decision made on the spot or based on the illegal facts recorded by the electronic technology monitoring equipment In case of reconsideration, an application for administrative reconsideration can be submitted through the administrative organ that has made the decision on administrative penalty," Liang Ying said specifically.

Highlight 4: Improving Administrative Reconsideration and Trial Procedures to Enhance Public Trust and Fairness

Administrative reconsideration review is the process in which administrative authorities review the legality and appropriateness of the administrative action being applied for administrative reconsideration, and it is the key to the reconsideration procedure. The key to improving the credibility of administrative reconsideration lies in enhancing the fairness of administrative reconsideration proceedings and making administrative reconsideration credible to the people.

The newly revised Administrative Reconsideration Law focuses on improving the procedures for administrative reconsideration and review, not only adding a special chapter name "Administrative Reconsideration and Review", but also making the following provisions from two aspects:

Firstly, regarding the general requirements for administrative reconsideration proceedings: Firstly, it is stipulated that the higher-level administrative reconsideration organ may, as needed, hear administrative reconsideration cases under the jurisdiction of the lower level administrative reconsideration organ. The second is to establish procedures for the suspension and termination of administrative reconsideration, and to make provisions for the cessation of administrative actions during the administrative reconsideration period. The third is to improve the provisions on evidence for administrative reconsideration, clarify the burden of proof for the applicant and the respondent, as well as the investigation and evidence collection by the administrative reconsideration authority. Fourthly, simplified procedures have been added to promote the separation of complex and simplified administrative reconsideration cases.

Secondly, regarding the requirements for applying ordinary procedures to hear cases: firstly, it is stipulated that unless the parties are unable to hear their opinions due to reasons, the administrative reconsideration body should listen to the opinions of the parties through various means. The second is to stipulate that for the trial of major, difficult, and complex cases, the administrative reconsideration institution shall organize a hearing. Thirdly, it is stipulated that people's governments at or above the county level shall establish administrative reconsideration committees to provide advisory opinions on handling administrative reconsideration cases, and to study and propose opinions on major issues and common issues in administrative reconsideration work. The advisory opinion of the Administrative Reconsideration Committee is an important reference basis for making administrative reconsideration decisions.

It is worth mentioning that in recent years, local authorities have explored pilot reforms of administrative review committees, attracting experts, scholars and other external sources to study major, difficult and complex cases, and providing consulting opinions for administrative review agencies to refer to when making decisions. This pilot program has achieved positive results, effectively enhancing the fairness and authority of administrative reconsideration. In order to better play the active role of the Administrative Reconsideration Committee, the newly revised Administrative Reconsideration Law has made special provisions for the Administrative Reconsideration Committee.

According to the newly revised Administrative Reconsideration Law, there are four types of cases that request the Administrative Reconsideration Committee to provide advisory opinions: first, administrative reconsideration cases with significant, difficult, and complex circumstances; Secondly, administrative reconsideration cases with strong professionalism and technical expertise; The third is administrative reconsideration cases under the jurisdiction of the people's governments of provinces, autonomous regions, and municipalities directly under the central government that are dissatisfied with the administrative acts made by their own organs; The fourth is other administrative reconsideration cases that the administrative reconsideration institution deems necessary to request consultation.

Highlight 5: Optimizing the Administrative Reconsideration Decision System and Strengthening the Supervision of Implementation

The administrative reconsideration organ's judgment and handling of the legality and appropriateness of disputed administrative acts in accordance with laws, regulations, and rules, based on the investigation of facts, through reconsideration proceedings, is the administrative reconsideration decision. The quality and effectiveness of administrative reconsideration decisions made by administrative reconsideration organs are directly related to the authority of administrative reconsideration.

To this end, the newly revised Administrative Reconsideration Law further optimizes the system of administrative reconsideration decisions. Firstly, it adjusts the order of administrative reconsideration decisions, refines changes in decisions, revokes decisions, and confirms illegal decisions, and places them in a prominent position. The second is to strengthen the application of change decisions and increase their applicability. The third is to make special provisions on the types of decisions made in administrative agreements. The fourth is to make provisions for the production and effectiveness of mediation agreements, as well as administrative reconsideration and reconciliation. The fifth is to stipulate that if the administrative reconsideration authority discovers that the respondent or other lower level administrative organs have engaged in illegal or improper administrative actions during the handling of administrative reconsideration cases, it may issue an administrative reconsideration opinion.

At the same time, the newly revised Administrative Reconsideration Law also makes provisions to strengthen the supervision of the implementation of administrative reconsideration decisions: firstly, it stipulates that if the respondent fails to fulfill or delays the fulfillment of the administrative reconsideration decision, mediation agreement, or opinion without justifiable reasons, the administrative reconsideration organ or relevant higher-level administrative organ shall order them to fulfill within a specified time limit, and may interview the relevant person in charge of the respondent or give a notice of criticism. The second is to stipulate that if the applicant or third party fails to file a lawsuit within the prescribed time limit and fails to fulfill the administrative reconsideration decision or mediation agreement, or fails to fulfill the final administrative reconsideration decision, the relevant authorities shall enforce it according to different types of decisions. The third is to establish corresponding legal responsibilities for the respondent's failure to fulfill or delay in fulfilling the administrative reconsideration decision, mediation agreement, or opinion without justifiable reasons.