论行政复议中禁止不利益变更原则的适用

On the Application of the Principle of Prohibiting the Alteration of Adverse Interests in Administrative Reconsideration

行政复议中的禁止不利益变更原则是指当申请人不服行政决定申请复议时,原则上复议机关不得作出对申请人更为不利的复议决定。《行政复议法实施条例》第51条关于该原则的规定存在原则之间冲突、效力层级较低、适用范围不清、例外规定狭窄和概念模糊等不足,导致其在司法适用上存在一定障碍。新《行政复议法》第63条第2款在一定程度上对以上问题作出了回应:将该原则提升至法律层级,进一步扩张其适用范围,明确了一定的例外情形。将来应进一步扩张其适用范围,不局限在当事人复议请求范围内,而将其适用于变更、撤销及撤销并重作决定,同时进一步明确该原则的适用限度。

The principle of prohibiting the alteration of adverse interests in administrative reconsideration means that when an applicant refuses to accept the administrative decision and applies for reconsideration,the reconsideration authority shall not,in principle,make a reconsideration decision which is more unfavorable to the applicant.The provision of this principle in Article 51 of the Implementing Regulations of the Administrative Reconsideration Law has such problems as conflict between principles,low level of validity,unclear scope of application,narrow exception provisions and vague concept,which result in certain obstacles in the judicial application of this principle.Paragraph 2 of Article 63 of the new Administrative Reconsideration Law responds to the above problems to some extent by elevating the principle to the level of law,further expanding its scope of application and specifying certain exceptions.In the future,its scope of application shall be further expanded and shall not be limited to the scope of reconsideration claims of the parties concerned,but shall be applied to decisions on alteration,revocation and withdrawal as well as other decisions with the limitation of application of this principle further specified.