行政复议责令重作决定的反思与完善

Reflection on and Improvement of Order to Redo the Previous Decision Made by Administrative Reconsideration

从当前有关行政复议的法律规范可知,责令重作决定附随于撤销决定或者确认违法决定,复议机关对是否作出责令重作决定拥有完全的自由裁量权。行政复议法和行政复议法实施条例中关于责令重作决定的规定比较简单,但44部有关行政复议的地方性法规、地方政府规章和部门规章就此作出了很多创新性规定,使其趋于完善。分析有关责令重作决定的相关理论和典型案例可知,责令重作决定只能附随于撤销决定,同时在复议机关因被申请人未提供证据而作出撤销决定时依旧有适用的空间。复议机关在决定是否作出责令重作决定时的考量因素是被复议行为与申请人的权利义务关系,在其具体的四种关系中只有一种情形下复议机关才拥有裁量权。为了在行政复议中彻底解决行政争议,复议机关有权力也有义务对重新作出的行为进行主动审查,审查其是否合法合理以及是否违反责令重作决定中的限制性条件。

From the current legal norms concerning administrative reconsideration, it can be known that the order to redo the previous administrative decision is accompanied by a decision to revoke or confirm the illegal decision, and the reconsideration agency has full discretion in deciding whether to order the decision or not. The Administrative Reconsideration Law and the Regulations on the Implementation of the Administrative Reconsideration Law are relatively simple in their provisions concerning the order to redo the previous decision, and many innovations can be identified in the 44 local regulations, local government regulations and departmental regulations concerning administrative reconsideration, leading to increasingly better administrative reconsiderations. Through the analysis of relevant theories and typical cases concerning the order to redo an administrative decision, it can be known that the order to redo the previous decision can only be accompanied by the revocation decision, and there is still room for application when the reconsideration agency makes the revocation decision because the respondent did not provide evidence. The factor influencing the reconsideration agency in deciding whether to make a decision to redo the previous decision is the relationship between the reconsideration action and the rights and obligations of the applicant. In only one of the four specific relationships, the reconsideration authority has the discretionary power. In order to completely resolve administrative disputes in administrative reconsideration, the reconsideration agency has the right and obligation to conduct an active review of the re-doing action, to examine whether it is lawful and reasonable, and whether it violates the restrictive conditions in the order to redo the previous decision.