“化解行政纠纷主渠道”定位下的行政复议与行政诉讼之新型关系

The New Relationship between Administrative Reconsideration and Administrative Litigation under the Orientation of “the Main Channel of Resolving Administrative Disputes”

行政复议制度自建立以来没有发挥理想的功能,这是不争的事实。《行政复议法》修改正在加紧进行中,把行政复议打造成化解行政纠纷主渠道的定位已经十分明确。对一直延续至今的"当事人自由选择为原则,法定复议前置为例外"模式,学界的争论也一直未有停息。颠覆性地改变现有行政复议与行政诉讼之间的关系模式是不现实的。原封不动地保持现有模式也是不可取的。在保持当事人自由选择为原则,复议前置为例外总体模式不变的情形下,通过扩大行政复议的前置范围,来适当限制当事人的自由选择。由《行政复议法》设置统一的标准,并明列复议前置的基本事项,同时以"法律规定的其他事项"作为复议前置的兜底条款。复议前置范围之外的,当事人可以选择行政复议,除法律明确规定复议终局的,对行政复议决定不服的,可以再提起行政诉讼,也可以直接选择行政诉讼。尽可能减少复议终局情形,尤其要排除选择性复议终局的情形。以此来构建行政复议与行政诉讼之新型关系,同时推进行政复议自身制度的不断完善,以便有效发挥行政复议化解行政纠纷主渠道的功能。

It is an indisputable fact that the administrative reconsideration system has not played an ideal role since its establishment. The revision of the Administrative Reconsideration Law is in full swing,and the standpoint of making administrative reconsideration the main channel to resolve administrative disputes has been very clear. The academic debate on the mode of “the principle of free choice of the parties and the exception of prior legal reconsideration” has not stopped. It is unrealistic to change the relationship between administrative reconsideration and administrative litigation completely. It is also not advisable to keep the existing model intact. While insisting the principle of the free choice of the party and the exception of prior legal reconsideration, we can appropriately restrict the free choice of the parties by expanding the scope of the prior administrative reconsideration. The Administrative Reconsideration Law can set a unified standard, then set out the basic items of the situations in which administrative reconsideration must be applied first, and take “other items stipulated by law” as the general clause of the prior administrative reconsideration. If it is beyond the scope of prior administrative reconsideration, the party concerned may choose administrative reconsideration, unless the law clearly stipulates that the reconsideration is final, and if he is not satisfied with the decision of administrative reconsideration, he may bring an administrative lawsuit again, or he may directly choose an administrative lawsuit. We should try our best to reduce the situation of final reconsideration, especially exclude the situation of selective reconsideration. We should build a new relationship between administrative reconsideration and administrative litigation, promote the continuous improvement of the system of administrative reconsideration, and make administrative reconsideration effectively play the main channel function of resolving administrative disputes.