质疑批准机关作为行政复议被申请人——以《行政复议法实施条例》第13条为分析对象

Questioned on The Approval Authority as the Reconsideration Respondent: With Analyzing Article 13 of Implementation Rules of Administrative Reconsideration Law

《行政复议法实施条例》第13条将批准机关确定为复议被申请人,尽管对法律制度和行政实践状况做了最大限度的关照,凸显了应有的理论正当性和实践理性,但毕竟违背了行政行为成立、生效、名义与责任等基本法理,没有考虑批准的性质和复杂内涵对复议被申请人确定的应有影响,且与行政复议法、行政诉讼法及相关司法解释相抵触,尤其是它实质上剥夺了相对人对报批并对外署名的下级机关的复议申请权,在"复议必经"的情况下,这也等于剥夺了相对人对报批的下级机关最终行为的诉权。应本着为相对人提供充分救济和复议选择权的原则,尽量将报批机关与批准机关设计为共同被申请人,并对实施条例的三个条款做针对性修改。

The Article 13 of Implementation Rules of Administrative Reconsideration Law takes the administrative organization oi reconsideration as the respondent, although it has maximized consideration of the legal system and administrative practice, and highlighted the theoretical justification and practical rationality of practice, but it has violated the basic law like the establish- ment, effect, nominal and responsibility of the administrative action after all, without considering the influence to the reconsider- ation respondent by the nature and complexity of the content approved for reconsideration, and it has collided with the relevant ju- dicial ~aterpretation as administrative reconsideration law and administrative procedure law. Especially, it has deprived of the fight of counterpart to apply for reconsideration to the institutions at lower levels. In the ease of ＂Reconsideration Necessary＂, it is equal to deprive the right of appeal to the final action for the counterpart. It is considered that it should provide the adequacy of remedies and the right to choose for reconsideration. For that, it need to unify the approval authority and do some appropriate modifications of the three clause of the implementation rules.