The administrative reconsideration institution refers to the administrative organ with the power of administrative reconsideration, which is responsible for the acceptance, examination and adjudication of administrative reconsideration cases. According to the provisions of the Administrative Reconsideration Law, the institutions responsible for legal affairs in administrative reconsideration institutions are generally administrative reconsideration institutions. For example, the Legislative Affairs Office of the State Council is the administrative reconsideration institution of the State Council.
Question 2: Which authorities should administrative reconsideration generally apply to? Answer: (1) If the applicant refuses to accept the specific administrative act of the local people's work department at or above the county level, the applicant may choose to apply for administrative reconsideration to the people's government at the same level or the competent department at the next higher level. If they are dissatisfied with the specific administrative acts of the administrative organs or state security organs that implement vertical leadership, such as customs, finance, national tax and foreign exchange management, they shall apply to the competent department at the next higher level for administrative reconsideration. (2) If they are dissatisfied with the specific administrative actions of local people's governments at all levels, they shall apply to the people's government at the next higher level for administrative reconsideration. If the local people's government at the county level is dissatisfied with the specific administrative act of the dispatched office established by the people's government of a province or autonomous region according to law, it shall apply for administrative reconsideration to the dispatched office. (three) if he refuses to accept a specific administrative act, he shall apply for administrative reconsideration to the the State Council department or the people's government of a province, autonomous region or municipality directly under the Central Government that has made the specific administrative act. If he refuses to accept the decision of administrative reconsideration, he may bring an administrative lawsuit to the people's court; You can also apply to the State Council for an award, and the State Council will make a final award in accordance with the provisions of this Law.
Question 3: Under what circumstances is the administrative reconsideration organ at the next higher level? In most cases, the administrative reconsideration organ can be selected by the parties, the higher authorities or the people at the same level. National taxation, customs and other departments that belong to the vertical management of the central government can only apply for administrative reconsideration to the higher authorities.
Question 4: What decisions can the administrative reconsideration organ make? The whole process of administrative reconsideration can be roughly divided into two stages: the first stage is the acceptance stage, including the application, which ends with the formal acceptance by the administrative organ; The second stage is from acceptance to reconsideration decision. The decision of administrative reconsideration must be agreed by the person in charge of the administrative reconsideration organ or passed through collective discussion, which embodies the will of the administrative organ and is the result of administrative reconsideration. The administrative reconsideration decision includes the following circumstances:
First, maintain the specific administrative act of applying for reconsideration.
Maintenance is to maintain the original specific administrative act and make it continue to exist. Five conditions should be met: 1. The facts are clear. That is, the facts that are recognized exist objectively and are beyond doubt; 2. The evidence is conclusive. That is, the evidence provided makes the rebuttal untenable; 3. The application basis is correct. That is, laws, regulations, rules and documents that have nothing to do with the case and have expired or abolished are not applicable; 4. The procedure is legal. Laws and regulations stipulate the ways, steps and deadlines of various administrative actions, which must be implemented step by step; 5. The content is appropriate. That is, although the application basis is correct, the administrative organ still has to make appropriate decisions within a certain range. The above five conditions are indispensable, otherwise it is difficult to guarantee the fairness of the administrative reconsideration decision.
Two, decided that the administrative organ shall perform its statutory duties within a certain period of time.
Every administrative organ should fulfill its responsibilities, such as issuing pensions and relief funds on time. If the administrative organs do not act for a long time, it will also harm the interests of citizens and legal persons. If an administrative organ fails to perform its statutory duties and is applied for reconsideration by a citizen or legal person, the reconsideration organ must order it to perform its duties within a certain period of time.
Three. Revoke the original specific administrative act
Revocation is the revocation of an administrative act that has occurred, which means that the revoked act will not take effect from the date of revocation. Revocation can be divided into two situations: first, if a specific administrative act has five situations, such as unclear main facts, insufficient evidence, wrong application basis, violation of legal procedures, exceeding or abusing power, and obvious inappropriateness, it is decided to revoke it; Second, if the administrative organ fails to make a written reply according to law and submit all the evidence, basis and other relevant materials of the specific administrative act at the beginning, it shall determine that there is no evidence or basis for the administrative act and decide to cancel it.
Four, change the original specific administrative act
The difference between alteration and revocation is that alteration is that the reconsideration organ directly adjusts the original specific administrative act, thus directly participating in the administrative activities of the management counterpart.
Verb (abbreviation of verb) confirms that a specific administrative act is illegal.
Confirming violations is less illegal than revoking and changing, and it is mainly applicable to revoking and changing other administrative acts other than administrative acts that can be handled, creating preconditions for ordering to make specific administrative acts again.
Question 5: What are the duties of the administrative reconsideration organ? The administrative organ that performs the duties of administrative reconsideration is the administrative reconsideration organ. The institution in charge of legal affairs of the administrative reconsideration organ shall specifically handle administrative reconsideration matters and perform the following duties:
(1) Accepting applications for administrative reconsideration;
(2) Investigating and collecting evidence from relevant organizations and personnel, and consulting documents and materials;
(three) to examine whether the specific administrative act of applying for administrative reconsideration is legal and appropriate, and to formulate the administrative reconsideration decision;
(4) Handling or forwarding the application for examination of the relevant provisions listed in Article 7 of this Law;
(five) in accordance with the prescribed authority and procedures, put forward suggestions for handling the acts of administrative organs in violation of the provisions of this law;
(six) to handle the matters of responding to the administrative litigation brought by the administrative reconsideration decision; (seven) other duties as prescribed by laws and regulations.
Question 6: What legal provisions should the administrative reconsideration organ make an administrative reconsideration decision on? The administrative reconsideration organ shall be responsible for the legal work of the institution shall be made to the respondent.
Specific administrative act
(a) the specific administrative act has clear facts, conclusive evidence, correct application basis, legal procedures and appropriate contents, and makes an administrative reconsideration decision;
(two) if the respondent fails to perform the statutory duties, it shall be decided to perform it within a certain period of time;
(3) Deciding to cancel, change or confirm that a specific administrative act is illegal under any of the following circumstances; If it is decided to revoke or confirm that a specific administrative act is illegal, the respondent may be ordered to make a specific administrative act again within a certain period of time:
The main facts are unclear and the evidence is insufficient;
The application basis is wrong;
Violation of legal procedures; Exceeding or abusing authority; The specific administrative act is obviously improper.
(4) If the respondent fails to provide a written reply and submit the evidence, basis and other relevant materials of a specific administrative act in accordance with Article 23 of the Administrative Reconsideration Law, it shall determine that there is no evidence or basis for the specific administrative act and decide to revoke the specific administrative act.
If the administrative reconsideration organ orders the respondent to make a specific administrative act again, the respondent shall not make the same or basically the same specific administrative act with the same facts and reasons.
Question 7: To which organ should the administrative reconsideration be filed? There are many kinds of situations, so we can't generalize them.
Article 3 The administrative organ that performs the duties of administrative reconsideration in accordance with this Law is the administrative reconsideration organ.
Article 12 If an applicant refuses to accept a specific administrative act of a local people's work department at or above the county level, he may choose to apply for administrative reconsideration to the people's government at the same level or the competent department at the next higher level.
If they are dissatisfied with the specific administrative acts of the administrative organs or state security organs that implement vertical leadership, such as customs, finance, national tax and foreign exchange management, they shall apply to the competent department at the next higher level for administrative reconsideration.
Thirteenth local people at all levels who are dissatisfied with a specific administrative act may apply for administrative reconsideration to the local people at the next higher level.
If the local people's government at the county level is dissatisfied with the specific administrative act of the dispatched office established by the people's government of a province or autonomous region according to law, it shall apply for administrative reconsideration to the dispatched office.
Article 14 Anyone who refuses to accept a specific administrative act of the the State Council department or the people's government of a province, autonomous region or municipality directly under the Central Government may apply for administrative reconsideration to the department of the State Council or the people's government of a province, autonomous region or municipality directly under the Central Government that made the specific administrative act. If he refuses to accept the decision of administrative reconsideration, he may bring an administrative lawsuit to the people's court; You can also apply to the State Council for an award, and the State Council will make a final award in accordance with the provisions of this Law.
Article 15 Anyone who refuses to accept a specific administrative act of other administrative organs or organizations other than those specified in Articles 12, 13 and 14 of this Law shall apply for administrative reconsideration in accordance with the following provisions:
(1) To apply for administrative reconsideration to the people's government that established the local people's government at or above the county level if it refuses to accept the specific administrative act of the dispatched office established according to law;
(2) To apply for administrative reconsideration if it refuses to accept the specific administrative act of the department where the agency is located or the local people's government at the corresponding level in its own name in accordance with laws, regulations or rules;
(3) To apply for administrative reconsideration to the local people's bureau, the local people's work department or the department directly managing the compensation organization in the State Council if they are dissatisfied with the specific administrative act of the organization authorized by laws and regulations;
(four) if two or more administrative organs are dissatisfied with a specific administrative act made in the same name, they shall apply to the administrative organ at the next higher level for administrative reconsideration;
(5) To apply for administrative reconsideration to the administrative organ at the next higher level of the administrative organ that continues to exercise its functions and powers if it refuses to accept the specific administrative act made by the revoked administrative organ before revocation.
Under any of the circumstances listed in the preceding paragraph, the applicant may also apply for administrative reconsideration to the people's government at the county level where the specific administrative act occurred, and the people's government at the county level that accepts the application shall handle it in accordance with the provisions of Article 18 of this Law.
Question 8: What is the important role of administrative reconsideration? Administrative reconsideration has the following important functions: First, administrative reconsideration is an administrative method to solve administrative disputes. Administrative disputes are obstacles, obstacles and obstacles in the implementation of administrative activities, and also make administrative relations in an uncertain state for a certain period of time. If this kind of dispute is not settled well, it will affect the administrative efficiency, affect the administrative activities of state affairs, or infringe upon the legitimate rights and interests of citizens, legal persons or other organizations. Therefore, it must be solved by establishing a good legal system to legalize it. Correct administrative decisions can be implemented, illegal and improper administrative acts can be revoked or abolished, and the legitimate rights and interests of citizens, legal persons or other organizations can be restored, thus providing good relief for citizens, legal persons or other organizations. Second, administrative reconsideration is an administrative review system with specific administrative acts as the review object. The administrative reconsideration organ shall conduct administrative reconsideration on the administrative organ that has made a specific administrative act, so as to supervise the administrative organ to exercise its functions and powers according to law. In addition to reviewing the specific administrative acts of administrative organs, in accordance with the provisions of the Administrative Reconsideration Law, the review of abstract administrative acts of administrative organs can also be initiated through the administrative reconsideration system. Thirdly, administrative reconsideration, as an important means of administrative relief, can correct the mistakes of administrative organs in time, not only provide strong legal protection for the legitimate rights and interests of citizens, legal persons or other organizations, protect them from illegal administration and restore the infringed rights and interests, but also maintain the seriousness and authority of administrative activities, ensure the smooth progress of administrative activities and improve administrative efficiency. Fourth, administrative reconsideration can promote supervision between superiors and subordinates. The administrative reconsideration right of the administrative reconsideration organ comes from Article 59 of the Organic Law of Local People's Congresses at All Levels, that is, people's governments at or above the county level can change or cancel inappropriate orders and instructions of their own departments and inappropriate decisions and orders of people's governments at lower levels. By revoking or changing inappropriate decisions made by higher authorities to lower authorities, we can promote the supervision of higher authorities to lower authorities, enhance the legal concept of administrative staff, promote them to act according to law, and reduce illegal or improper administrative acts against citizens, legal persons or other organizations. Fifth, it is simple, fast and economical to solve administrative disputes through administrative reconsideration. Because the administrative organ is familiar with the business of the department, there is a relationship of leadership obedience between the superior and the subordinate. When there is a dispute between the subordinate organ and the administrative counterpart, the superior organ can make use of its own advantages to quickly find out the facts and solve the dispute, and can directly investigate and deal with the directly responsible personnel who have violated the law and dereliction of duty. The Administrative Reconsideration Law stipulates that the administrative reconsideration organ shall not charge any fees for performing its duties of administrative reconsideration. It is more economical and time-saving for citizens, legal persons or other organizations to obtain relief through administrative reconsideration than through administrative litigation. Sixth, compared with administrative litigation, administrative reconsideration has the following significance: 1. In the case that the decision of administrative reconsideration is final and the parties concerned do not bring an administrative lawsuit, administrative disputes can be resolved through administrative reconsideration within the administrative system, so that problems that can be solved within the administrative system are not pushed to the court. At this time, administrative reconsideration has played an important role in reducing litigation and stopping disputes. 2. In the case of administrative litigation caused by administrative reconsideration, administrative reconsideration becomes the pre-stage of administrative litigation, which is conducive to the people's court to clarify the subject matter of litigation and plays an important role in the people's court to quickly ascertain the facts and make correct judgments.
Question 9: Under what circumstances can the administrative reconsideration organ mediate according to the principle of voluntariness and legality? [Corresponding Law] Under any of the following circumstances, the administrative reconsideration organ may conduct mediation in accordance with the principle of voluntariness and legality: (1) A citizen, legal person or other organization refuses to accept a specific administrative act made at the discretion of the administrative reconsideration organ as prescribed by criminal laws and regulations and applies for administrative reconsideration; (two) administrative compensation or administrative compensation disputes between the parties. If the parties reach an agreement through mediation, the administrative reconsideration organ shall make a conciliation statement for administrative reconsideration. The conciliation statement shall contain the request for administrative reconsideration, facts, reasons and conciliation results, and shall be stamped with the seal of the administrative reconsideration organ. The conciliation statement of administrative reconsideration shall have legal effect after being signed by both parties. If the mediation fails to reach an agreement or one party reneges before the mediation takes effect, the administrative reconsideration organ shall make an administrative reconsideration decision in time. [Interpretation of Articles] This article is about the mediation system of administrative reconsideration. Mediation, as a way to solve social contradictions, is widely used in China, and as an institutional culture, it deeply affects people's social values. However, it is generally believed that mediation is not applicable to administrative litigation and administrative reconsideration, because the specific administrative actions made by administrative organs are the concrete embodiment of exercising administrative power on behalf of the state, which is endowed by the state through law. When exercising power, the administrative organ has no right to dispose of power freely according to its own will, regardless of whether there is a dispute with the management counterpart, and can only act according to the will of the state. This makes the reconsideration organ lose the basis of mediation when dealing with disputes caused by the exercise of administrative power. However, there are two kinds of specific administrative acts made by administrative organs: one is binding and the other is discretionary. Binding specific administrative act refers to the specific administrative act made by the administrative subject in strict accordance with the law under the condition that the applicable conditions of the act are clearly and in detail stipulated by law. Discretionary specific administrative act refers to the specific administrative act made by the administrative subject with certain discretion because the law only stipulates a behavior principle or scope for administrative act. The administrative subject's discretion is manifested as follows: first, the discretion of behavior. The second is about the level of scope and type. For example, when an administrative organ makes an administrative punishment, it can freely choose within the scope of legal punishment, including choosing the type and range of punishment. The third is the discretion of nature determination, for example, the administrative organ has certain discretion on the nature of the behavior of the administrative counterpart or the nature of the matters it manages. The fourth is the discretion of the seriousness of the case. For example, many administrative regulations in China have the words minor, serious and serious. When there are no legal conditions to determine the seriousness of the circumstances, the administrative organ has the discretion to determine the seriousness of the circumstances. As mentioned above, the administrative reconsideration organ refuses to mediate a specific administrative act constrained by the administrative organ because the administrative organ has no discretion when making the act, so it cannot reach a mediation agreement with the applicant for administrative reconsideration through consultation. However, the specific administrative acts made by administrative organs when exercising legal discretion, that is, the specific acts of discretion, are different. When making such acts, the administrative organ may determine the content of the specific administrative act according to the actual situation. Therefore, it can accept the mediation of the administrative reconsideration organ and reach a mediation agreement with the applicant for administrative reconsideration within the principles and scope of behavior stipulated by law. Moreover, in the practice of administrative reconsideration, mediation is also widely used in the process of handling administrative disputes, and has achieved good results in resolving contradictions and calming disputes. Administrative reconsideration mediation should meet the following requirements: First, mediation should adhere to the principle of voluntariness. In administrative reconsideration, the administrative reconsideration organ can only mediate if both the applicant and the respondent voluntarily accept mediation. The principles of voluntary mediation include whether to accept voluntary mediation and whether to accept the results of voluntary mediation. This principle is emphasized because the relationship between the respondent and the applicant is one of management and management, and there is no equal status. If the principle of voluntary mediation is not emphasized, the respondent may use its strong position to force the applicant to accept mediation, thus failing to safeguard the legitimate rights and interests of the applicant. Therefore, it is more necessary for administrative reconsideration to emphasize the principle of voluntary mediation than civil trial. Second, mediation should be conducted according to law. When conducting mediation, the administrative reconsideration organ must adhere to the principle of legality, not only the mediation result should be legal, but also the mediation procedure should conform to the legal provisions, and must not harm the public interests, national interests and the legitimate rights and interests of others. Third, according to the Regulations on the Implementation of the Administrative Reconsideration Law, mediation is only applicable to the following two situations: (1) A specific administrative act made by a citizen, a legal person or any other organization in the exercise of the discretion prescribed by law ..... >>
Question 10: What is the scope of administrative reconsideration in Article 6 of the Administrative Reconsideration Law?
Under any of the following circumstances, citizens, legal persons or other organizations may apply for administrative reconsideration in accordance with this Law:
(a) refuses to accept the administrative punishment decisions made by the administrative organ, such as warning, fine, confiscation of illegal income, confiscation of illegal property, order to suspend production or business, temporary suspension or revocation of license, temporary suspension or revocation of license, administrative detention, etc. ;
(2) Refusing to accept administrative compulsory measures such as restricting personal freedom or sealing up, distraining or freezing property made by administrative organs;
(3) Refusing to accept the decision made by the administrative organ to change, suspend or revoke the license, license, qualification certificate and other documents;
(4) Refusing to accept the decision of the administrative organ to confirm the ownership or use right of natural resources such as land, mineral deposits, water, forests, mountains, grasslands, wasteland, beaches and sea areas;
(five) that the administrative organ infringes on the lawful operation;
(six) the administrative organ changes or cancels the agricultural contract, which infringes upon its legitimate rights and interests;
(seven) that the administrative organs illegally raise funds, collect property, apportion expenses or illegally require other obligations;
(eight) that meets the statutory conditions, apply for administrative organs to issue permits, licenses, qualification certificates, qualification certificates and other documents, or apply for administrative organs to examine and approve and register related matters, and the administrative organs fail to handle them according to law;
(nine) apply to the administrative organ to perform the statutory duties of protecting personal rights, property rights and the right to education, and the administrative organ fails to perform them according to law;
(ten) to apply for an administrative organ to issue a pension, social insurance premium or minimum living allowance according to law, and the administrative organ fails to issue it according to law;
(eleven) that other specific administrative acts of administrative organs infringe upon their legitimate rights and interests.