行政复议对行政诉讼的影响分析

Analysis of Impact from Administrative Reconsideration on Administrative Litigation

行政复议分流了部分行政争议,纠正了部分违法行政行为,但行政复议往往由于解决争议的能力有限而使纠纷继续进入诉讼,由于纠错的功能未充分实现而导致监督不到位。行政复议对行政诉讼的负面影响既有制度设计上的原因,也有来自实践层面的消极因素。要构建行政复议与行政诉讼的和谐关系,行政复议的定位就应以解决纠纷为主要目标,而将监督行政和救济权利作为次要目的;在复议决定维持原具体行政行为的情况下,就应将原机关作为被告,复议机关作为第三人;行政复议须部分地采纳言辞审理原则,在复议决定对申请人或其他人可能不利的情况下,就应当听证或开庭;还应设置行政复议委员会以作为独立的行政复议机关。

Administrative reconsideration can divert part of the administrative disputes, and correct some of the illegal administrative acts, yet due to the limited resolving capacity, administrative reconsideration often causes dispute to move into law suit, or leads to insufficient supervision due to unrealized corrective function. The negative impact from administrative reconsideration on administrative litigation comes both from institutional designing and from other negative factors in practice. To build harmonious relationship between administrative reconsideration and administrative litigation, the positioning of the administrative reconsideration shall take resolution of disputes as its primary goal, and take administrative supervision and right remedy as its secondary goal. In the event when the reconsideration decides to maintain the original specific administrative act, it should take the original organization as the defendant and the reconsideration agency as the third party. Administrative reconsideration shall partially adopted the principle of statement-based hearing procedure, and hold hearing or court trial when the resolution is likely to be negative to the applicant or other persons. Administrative reconsideration committee should be set up as an independent agency.