行政复议审查标准:在“行政诉讼”和“自我纠错”之间

Review Standard of Administrative Reconsideration:Between“Administrative Litigation”and“Self Correction”

我国复议审查标准缺失,既导致复议沦为诉讼等制度的"复制品",未成为"化解纠纷主渠道";也导致了"同案异判"。复议审查标准本质上描绘了复议机关对被审查者决定的介入程度,具体表现为对不同问题进行不同审查。复议审查标准受主、客观因素影响:主观因素是复议性质,这可通过复议在由"行政诉讼"到"自我纠错"构建的谱系上的位置判断;客观因素是特殊事项的性质。当前修法中,我国复议司法性增强,对应审查标准可为:对事实问题,复议机关可基于既有证据以作出自己的判断,并在给付请求案件中自行调查取证;对法律问题,复议机关可全面审查、适用软法;对混合问题,复议机关可审查裁量,但应尊重被审查者对特殊事项的判断。

Due to the lack of review standards for reconsideration in China,the reconsideration has become a“replica”of litigation and other relief systems.AS a result,the reconsideration has not played a role as the“main channel for resolving disputes”,and the phenomenon of different judgments in the same case occurs from time to time.In essence,the standard of reconsideration review describes the degree of involvement of the reconsideration organ in the primary decision maker,which is embodied in different review standards on different issues.The review standard of reconsideration is influenced by subjective and objective factors:the subjective factor is the nature of reconsideration,which can be judged by the position of reconsideration in the pedigree from“administrative litigation”to“self correction”.The objective factors are the nature of special matters in reconsideration.In China,the judicial nature of reconsideration is enhanced,and the corresponding review standards can be as follows.For factual issues,the reconsideration organ can make its own judgment based on the existing evidence,and investigate and collect evidence by itself in the case of payment request.For legal issues,the reconsideration organ can conduct comprehensive review and apply the soft law.For mixed issues,the reconsideration organ may review the discretionary decision,but shall respect the judgment of the special matters which is referred by the primary decision maker.