行政复议决定设定权之实证分析

An Empirical Analysis of the Right to Institute Decision of Administrative Reconsideration

行政复议决定是行政复议制度的核心问题之一,对行政复议法律性质的争议不断,没有一个统一的观点。从实践中来看,所有层级的法律规范针对行政复议决定都有设定权,即行政法规、地方性法规、地方政府规章和部门规章中针对行政复议决定的种类和具体适用情形对《行政复议法》中的规定都有所突破。这一现实不符合法制统一原则、不符合复议公正原则和不利于彻底解决行政争议。通过对《宪法》和《立法法》有关规定的分析可知,行政复议决定的设定权仅仅包括法律和行政法规,应尽快取消其它法规规范中针对行政复议决定的创制性规定,从而实现行政复议决定立法的科学化。

Decision of administrative reconsideration remains one of the core issues in system of administrative reconsideration.Owing to the endless disputes over the legal nature of administrative reconsideration,no consensus has been reached.In practice,different-level legal norms,such as administrative laws and regulations,local laws and regulations,rules made by local governments and other departments,have the power to institute the decision of administrative reconsideration.However,the decision types of administrative reconsideration and their specific application stipulated in these legal norms are not consistent with the provisions of the Administrative Reconsideration Law.This reality does not conform to the principle of unification of law and the principle of impartiality,thus is not conducive to completely resolving administrative disputes.Through analyzing relevant provisions in the Constitution and the Legislation Law,we propose that the decisions of administrative reconsideration can only be instituted by laws and administrative regulations,and any regulation on instituting decision of administrative reconsideration in other regulations and rules shall be abolished as soon as possible to realize the scientific legislation on decision of administrative reconsideration.