In four, for the administrative trial in administrative reconsideration and litigation cohesion in the perspective of problems and Solutions

  (a) the difference of administrative reconsideration and administrative litigation scope, resulting in part through the reconsideration of the case (in addition to the reconsideration case) to bring an administrative lawsuit cannot

   One difference: "the administrative reconsideration law" provisions of the involved in education, labor, political rights without legal, regulations may apply for reconsideration of the specific administrative act or acts of the state and the rules and the abstract administrative act against, can apply for administrative reconsideration, administrative litigation law "" but this exclusion scope in administrative litigation, even for a decision on administrative reconsideration, it must bring an administrative lawsuit to the people's court in accordance with the "administrative procedure law", if do not belong to the "provisions of the administrative procedure law," the scope of accepting cases, the people's court shall not accept the.

   Difference between two: the specific laws, regulations, administrative reconsideration decision is final, even if the specific administrative action which belongs to the "provisions of the administrative procedure law," the scope of accepting cases of administrative relative person refuses to accept, and the prosecution, the people's court shall not accept the.

   Difference between the three: "provisions relating to the final decision of the administrative reconsideration law" will be part of the administrative dispute in addition to exclude judicial review. "Administrative review law" set select final and single final award. Select the type of the reconsideration decision is "Administrative Reconsideration Law stipulates:" article fourteenth "refuses to accept a specific administrative act of the State Council or the Department of the province, autonomous region, municipality directly under the Central People's government, to make the specific administrative act of the State Council or the Department of the province, autonomous region, municipality directly under the Central People's government to apply for administrative reconsideration. If the party refuses to accept the administrative reconsideration decision, bring a lawsuit to the people's court; can also apply to the State Council for reconsideration, the administrative reconsideration of the State Council shall make a decision is final." But the State Council is not specifically deal with administrative dispute ruling body, appears unavoidably individual handling problems, and to give a person a kind of the State Council may not accept judicial supervision impression, against the modern idea of rule of law. Since the parties may choose the reconsideration or litigation at the outset, that such cases can enter the proceedings, the court does not belong to the unfavorable situation, it is proposed to abolish the administrative reconsideration authority under the State Council, the final decision of justice to ensure that the parties can maximize judicial guarantee. A single final award was "administrative review law" thirtieth paragraph second: "according to the State Council or of the provinces, autonomous regions, municipalities directly under the Central People's Government on the administrative division demarcation, adjustment, or land acquisition decisions, province, autonomous region, municipality directly under the central government confirmed the natural resources, mineral water, land, forest, mountain, grassland, wasteland, beach, sea and other property, the right to administrative review decision is final." From the statistics, the annual national court decision to withdraw, to confirm the specific administrative act related to natural resources is the percent of the total number of violations in the case of more than 20%, judicial review of specific administrative act, the administrative organ to protect the supervision of relative person legitimate rights and interests of non important, "the administrative reconsideration law" should not be listed as a final ruling.

   Difference between four: abstract administrative act into the scope of administrative reconsideration is conditionally, administrative reconsideration may directly examine, to judge the legitimacy of administrative litigation and state, although the review of abstract administrative behavior associated with the specific administrative act, but can not say that judgment of abstract administrative act is legal, only reluctantly said: "not applicable". "Administrative review law" provisions of article seventh, the citizen, legal person or other organization that provides normative document according to the concrete administrative behavior rules of illegal, on the specific administrative act of the application for administrative reconsideration, they may also apply for examination of these Provisions to the administrative reconsideration organ. Although legal review to abstract administrative act request the law, can only be put on the specific administrative act of the application for administrative reconsideration, cannot put separately, and the legitimacy of the abstract administrative action review procedures, do not necessarily apply to review procedures, the situation is complex on other organs other than to judge, specification the relative documents but refuses to accept a specific administrative act on the basis of the administrative relief way clear, is the effective supplement of the existing review for the record system. And "direct review administrative procedure law" expressly excludes the abstract administrative action right, lead to such a problem in judicial practice: in the process of administrative reconsideration, a certain authority effect on an abstract administrative act made confirmation, into the litigation process, which confirmed the binding on the court? We think, if it is the right to explain this specification or confirm the normative legitimacy, authority for the decision of the authorities in the review process, the court shall acknowledge its validity. But have the right to cancel the normative documents of the authorities to confirm the many, not the authority, then we should consult rules refer to the regulations, when sent to relevant agencies to adjudicate and confirmation, to send relevant organs to confirm and award. Especially the "legislative law" after the entry into force, meet the specification of conflict, should be in accordance with the "provisions of the legislation law", please send the relevant authorities to explain, to confirm or rule, not ultra vires confirmation.

  (two) the administrative lawsuit and the administrative reconsideration review principle of different, caused the dispute processing results be quite different

   "Administrative Reconsideration Law stipulates" the legality and appropriateness of a specific administrative act of administrative reconsideration is examined by the application, and the "administrative procedure law" in administrative litigation is to review the legality of a specific administrative act, not review the suitability of. Review of the principles of the two different directly affect the impartial handling administrative disputes in time, are not conducive to protect the legitimate rights and interests of the parties. Typical case: a street two couples per capita for the handicapped, the elderly have more than 70 years old, with Demolition Company on resettlement issues consultations fail circumstances, the housing management department to make decisions taken, placement of the households without movements in the elevator to the six floor on the top floor of a set of three rooms. The street that housed injustice, not take care of the special circumstances, direct sued to the court, but the court held that the resettlement area in accordance with the law, the scope of the discretion placed floor level to the housing management department, the court has no power to review, and maintain the housing management sector units ruling. The thought-provoking two questions: first, if the parties choose not to sue to the court directly, but to the administrative reconsideration organ for reconsideration, what is the result? The reconsideration organ to solve the problem of rationality to exercise discretion through the appropriate examination, which can make the lower floors of the reconsideration decision, resettlement, meet the requirements of the parties. Even if the decision to change the decision of the reconsideration, still can sue to the court, the legality of Court on the reconsideration decision, the administrative reconsideration organ to perform to correct improper administrative duties. In view of this, the different choice would have legal consequences distinct, legal seemingly endows party free choice of remedy of rights, but let the desire to maintain substantive rights loss, this can not be said to be the law failure, is the administrative litigation is to examine the specific administrative act is legal principle set in doubt. The two is the court when the parties directly file an administrative lawsuit, not the rationality of the housing management sector minimum award review of the case should be how to safeguard the legitimate rights and interests of the parties? For although legal but unreasonable, unjust, perverse relocation, should protect the guide the parties to apply for administrative reconsideration is more conducive to the legitimate rights and interests, or actively urged the housing sector in the Demolition Company to the residents who have been resettled, coordinate and solve the dispute prompted the people were taken to withdraw. To be taken were refused to withdraw, in the premise of reasonable settlement, shall be dismissed the plaintiff's claim instead of directly to maintain minimum award. Because once the maintenance of unreasonable demolition ruling, the ruling that have the force of law, which not only force without legal procedures can not be changed, even if the ruling is not reasonable, the housing department can't change or take other remedial measures. Therefore, the court should avoid "Shenwen moment method", the applicable law of mechanical, must embark from the legislation spirit and principles, from the protection of the legitimate rights and interests of the relative people to hear the case, try to make up for the legal provisions are inconsistent review of specific administrative acts scope, principle, cohesive work of administrative reconsideration and administrative litigation, cannot let the parties bear the adverse consequences the law is not consistent.

  (three) the right to administrative review of the administrative reconsideration organ, the lack of the necessary supervision mechanism, easy to bring the applicant for administrative reconsideration and the administrative reconsideration organ consequences to avoid collusion of judicial review

   Requirement applicant qualifications administrative reconsideration and the administrative litigation plaintiff qualification of the same, with legal interest between must and the specific administrative act, but only in the manager position of the citizens, legal persons and other organizations. Even if the administrative reconsideration in the management status of the administrative organ or other organization refuses to accept the administrative reconsideration organ to change the original specific administrative act, also cannot become the administrative proceedings plaintiff, that is to say, to make the original specific administrative act if the administrative reconsideration made superior administrative organ's wrong decision, only to a higher level administration organ or the supreme administrative organ to reflect, be resolved through internal procedures[1]. But in fact no one administrative organ to "slightly damaged" departmental interests, the interests of the state or the relative person rights and interests to offend the administrative organ at a higher level, more and more of an administrative organ or the administrative organ to the highest administrative organ at the next higher level of the "black", "Regulations" since the implementation of administrative reconsideration, reflect the internal procedures never open, administrative organs are unconditional obedience to the administrative reconsideration organ for the administrative reconsideration decisions. From this point of view, the administrative reconsideration organ of power is very large, its administrative reconsideration act only in the original specific administrative act, the administrative relative person may file an administrative litigation cases only accept judicial supervision, in addition, the exercise of administrative reconsideration power vacuum in without any legal and administrative supervision, the abuse of administrative reconsideration decisions for possible danger, applicant for administrative reconsideration and the administrative reconsideration organ to administrative reconsideration decisions to avoid collusion abuse of judicial review cannot be excluded.

  (four) the "administrative review law" thirtieth paragraph preposition of reconsideration provisions of the administrative license, the administrative right and administrative right infringement dispute, the three kinds of behavior in the legal application of the opposition and conflict

   "Specified in the first paragraph of article thirtieth of the administrative reconsideration law": "citizens, legal persons or other organizations think that the concrete administrative behavior violated its already to obtain land, minerals, water, forests, mountains, grasslands, waste, beaches, waters and other natural resources of the ownership or use right, shall first apply for reconsideration; who refuses to accept the decision of administrative reconsideration, it may bring an administrative lawsuit in a people's court according to law." here to the provisions of the "administrative organs of the specific administrative act" species is too broad, can be the administrative act, administrative licensing act, administrative adjudication. The Supreme People's court, the subsequent introduction of law interpretation [2003] 5 replied: "according to the provisions of the administrative reconsideration law thirtieth the provisions of paragraph 1, the citizen, legal person or other organization believes that a specific administrative act of administrative authority to confirm the ownership or use right of land, mineral, water natural resources, forest, mountain, grassland, wasteland, beaches, sea the invasion of the ownership of natural resources, it has made in accordance with the law or the right to use, the administrative reconsideration, it may bring an administrative lawsuit to the people's court, except otherwise provided by law; the administrative punishment of natural resources from the ownership or use right,Administrative compulsory measuresOther specific administrative acts of administrative litigation, administrative reconsideration law article thirtieth does not apply to the provisions of the first paragraph." The administrative tribunal of the Supreme People's Court promulgated the [2005] for He Zi No. Fourth "on administrative organ shall issue the ownership of natural resources or use right behavior whether to belong to confirm the administrative behavior response", the law interpretation [2003] 5 replied in the "confirmation" to make further explanation: "the definition is the parties to the dispute the ownership of natural resources, the administrative organ for natural resources dispute the ownership or use right of the right decision. The initial registration of land and other natural resources ownership or the right to use, which belongs to the nature of administrative license, shall not be included in the category of administrative confirmation. Accordingly, the administrative organs by the natural resources ownership or use right certificate behavior does not belong to the preposition of reconsideration cases." According to the judicial interpretation is the initial registration, registration of collective construction land use warrants, gives the construction on this land rights, the right to self registration starting from the date of acquisition, with post and, instead of the existing land to confirm the right of. Therefore, the specific administrative acts as an administrative licensing act, rather than administrative act, not to the preposition of reconsideration for the necessary procedures, can be directly file an administrative action to the people's court. But there are two different opinions regarding this controversy: the first view, according to the "land management law" in article eleventh, ownership and right of use of land by the people's government at or above the county level to the land register, issue a certificate, confirmation of land ownership and use rights. Therefore, the government issued the certificate of land use behavior is to confirm the external form of the right of land use, land belonging to administrative confirm behavior, does not have the property of administrative license, administrative review cases are in accordance with the law. In this regard, the legal office of the State Council on issues related to the administrative license law solution (two) also clearly think, issued by the rural homestead registration, the use right of state-owned land, is the property right registration, no administrative license. Therefore, the government issued the collective construction land use right behavior, belongs to administrative confirmation, shall be applied for reconsideration. The second view, "thirtieth of the administrative reconsideration law" the provisions of the first paragraph, only refers to the administrative tort disputes, namely the specific administrative act of an administrative organ infringes the parties have to obtain land and other natural resources ownership or right to use, in this case, it is suitable for preposition of reconsideration. On the administrative jurisdiction disputes, the parties in accordance with the "Administrative Reconsideration Law" article sixth (four) the provisions of item to apply for administrative reconsideration, the reconsideration to the people's court within the statutory time limit; can also directly to the people's court in the administrative proceedings. These two views are based on laws of each holding one said, the applicable law of administrative license, the administrative dissenting right and administrative right infringement dispute remarkable. The trial practice although has been in accordance with the Supreme People's court opinions applicable laws, but the natural resources ownership or right to the use of administrative confirmation, administrative licensing provisions conflict in preposition of reconsideration law needs the law further defined.

  (five) controversy on administrative reconsideration system, implied in theThe parties to respect the relief way choice, administrative resources and the lawsuit resources maximum benefit optimization game legislation

   The legislative intention reconsideration procedures set specific administrative disputes are mainly based on the following aspects: one is reduced relative to the cost of litigation, reduce lawsuit. The administrative reconsideration is efficient, convenient, low cost advantages, if the administrative relative person first by the administrative reconsideration procedure can solve the dispute, we can more effectively protect their legitimate rights and interests. The two is to avoid the judicial process unnecessary and inappropriate appropriate intervention of administrative procedure. Some of the administrative authority to manage affairs, early intervention of judicial power, will make the problem more delays and complex, and the administrative reconsideration made some of the administrative dispute resolution in the internal organs, not only to maintain the administrative organ of social credibility, but also improve the efficiency of dispute settlement, reduce disputes to solve the cost. Three is conducive to the administrative organs of the internal supervision, inspection, discover and correct their own shortcomings and errors in a timely manner, so that law enforcement agencies to promote further standardization, legal and effective exercise of administrative power. Four is conducive to the use of administrative and professional knowledge, technology and management experience to solve the problem quickly administrative complex and professional technical strong, improve the efficiency of solving the administrative dispute. Five is conducive to reduce the court's burden, rapid settlement of disputes. The establishment of administrative reconsideration in advance treatment principle, can make a lot of these administrative case settlement in administrative reconsideration procedure, can reduce the court administrative trial pressure, so the court can concentrate on trial after reconsideration still can not solve the administrative dispute.

   Preposition of reconsideration system since established, although at reduced cost, dispute resolution strengthening internal administrative supervision has achieved a certain effect, but it has many disadvantages in theory and in practice, lead to more and more criticism, especially with the progress of the times and the rule of law advancement speeding up, the malpractice also day by day highlights: one is deprived of the right to choose the way of relief of private party in administrative disputes occurred, violation of civil rights to exercise autonomy, improve the administrative litigation relief threshold. In the increasingly advocating individual freedom, respect the choice becoming parties to legal relief program has become the common trend of the world. The legislator should believe people in order to maintain its private interests can make a rational choice. Give the relative person of the administrative reconsideration and the administrative litigation right of choice, will also achieve the desired purpose preposition of reconsideration system. The two is to extend the relief time, timely protection is not conducive to the interests of the parties. Preposition of reconsideration in many cases can not only reduce the cost of dispute resolution, it will cause more tired of first instance. Mandatory requirements will be premise reconsideration as litigation, so want to solve administrative disputes through litigation parties had to first review, increase the administrative relative person, money, time and energy into the invisible, increasing litigation cost, this service, efficient, then the people the idea of contradiction. And administrative reconsideration high maintenance rate also makes the preposition of reconsideration to reduce the cost of unfulfilled aspirations, the people were forced to go to an even number of procedures. Three is the present laws and regulations, the lack of system rules for preposition of reconsideration system, has set the standard is not clear, non-standard settings, set the legitimacy problems. Laws, administrative regulations, local regulations can set the preposition of reconsideration system, not a hierarchy, resulting in a wide range of reconsideration, throughout the implementation of a defect, damage to the seriousness and the unification of law. Four is the theory and practice of Department of the preposition of reconsideration application range, is not a recognized, leading to the practice of relative people choose better remedy to protect their own legitimate rights and interests, going through a difficult, after the toss, time-consuming and laborious, even lead to the applicant's application for more than the application limit, serious impact on the interests of the applicant. Five is the mandatory requirements of the administrative relative person first review, the relative person of the administrative reconsideration itself as the internal administrative supervision mechanism, not just doubts. Due to the current personnel administrative reconsideration work in China, some of the staff is not high quality, specialization is not strong, the administrative reconsideration credibility is questionable, with subordinate relationship with the organ for reconsideration and the specific administrative acts of administrative organs, administrative organs than when the defendant's mental, has affected the fairness of administrative reconsideration decision, cause citizens not to trust the reconsideration institution. Six is compared with the people's court, the administrative organs do not necessarily have the professional advantage, and even has a professional advantage, also is not lost to endow humans review options. According to the "administrative review law" and its implementing regulations, the legal working body responsible for undertaking the reconsideration organ specific reconsideration cases, is not borne by the professional bodies, professional legal working body is not obvious. Over the years, the people's court has accumulated rich administrative experience in handling cases, in the professional and administrative staff compares favorably (according to statistics, from 1998 to 2002 the national courts of first instance administrative cases 464689 cases, up 65%, more than five years ago, in 2008 the national court concluded the first instance administrative cases has reached 109085 pieces). Moreover, the principle of judicial review also decided the court the case handling personnel shall have more professional and legal literacy than other departments.

   With the development of the idea of human rights, the rule of law, respect the independent choice of the parties to the legal relief way, has become a common trend all over the world. In respect of relief parties the right to choose the law, how to maximize the administrative organ in the processing technology, professional stronger administrative disputes resource advantage, and can ensure that each administrative disputes within the shortest time "to conclude the case", make the administrative resources and optimize the allocation of resources to maximize the lawsuit problems existing in the design of the system, the game preposition of reconsideration. "Administrative procedure law" thirty-seventh paragraph second: "the law, regulations shall first apply to the administrative organ for reconsideration, the reconsideration filed a lawsuit to the people's court, in accordance with the provisions of laws, rules and regulations." According to the provisions of laws, administrative regulations, local regulations, can provide for preposition of reconsideration. According to the "Regulations" legislative law, administrative regulations, local regulations can't preposition of reconsideration. Preposition of reconsideration system is relative to the administrative litigation rights, litigation system, only by the provisions of the law. Provisions of the preposition of reconsideration institution shall be clear, specific, and can be operated. The law of administrative reconsideration, the administrative organ in the specific administrative acts, should clearly inform the parties of the specific administrative act shall belong to the administrative reconsideration case, if the administrative organ fails to inform the parties should be allowed the freedom to choose, relief way. China's administrative reconsideration as a way of relief, should fully respect the right to choose and the exercise of the parties, the connection of administrative reconsideration and the administrative litigation, gives people the right to freedom of choice, the relative according to their own wishes to make one of the most conducive to their own interests to choose. It should be clear, preposition of reconsideration system only by law, not by the administrative regulations, local regulations and provisions. According to the development of the situation, the shrinking preposition of reconsideration scope and be strictly limited, the phasing out of preposition of reconsideration system.

  (six) on the reconsideration organ in the review period not to make a reconsideration decision to accept the prosecution, still some administrative judge on the connection between administrative review and administrative litigation is not know what course to take

   "Judicial interpretation" the twenty-second stipulation: "the reconsideration organ does not make a reconsideration decision within the statutory time limit, the parties to the original specific administrative action shall be filed a lawsuit against, in order to make the original specific administrative act as the defendant; where the reconsideration organ is not as filed a lawsuit against the reconsideration organ shall, to the defendant." The applicant can choose filed a lawsuit against the original specific administrative behavior, can also choose to sue the administrative reconsideration organ delaying the implementation of reconsideration behavior. The reconsideration organ after receiving an application for administrative review, whether registered or not registered, no matter the necessary procedure or procedures, as long as the statutory review period did not make a decision of administrative reconsideration, the administrative relative person against all may bring a lawsuit to the original specific administrative behavior and delay the review for any act of. The purpose of this provision is because people's court specific administrative behavior does not change the unreasonable, and the reconsideration organ can change the specific administrative act is not reasonable in the reconsideration decision, to give the administrative relative person wider judicial relief way, which can effectively protect the legitimate rights and interests. But in practice, the administrative relative person is difficult to distinguish between the specific administrative act as illegal and unreasonable limits, it is difficult to judge the pros and cons of prosecution of the original specific administrative act or delay the reconsideration behavior. In this case, the judge should be the choice of the specific administrative act as the object of litigation and the possible results inform the plaintiff, to make the right choice. The applicant filed a lawsuit against the original specific administrative act, the people's court for reconsideration organ in not reconsideration period did not make the decision of reconsideration, suspension of administrative litigation case wait for the review results, should be the reconsideration organ does not make a reconsideration decision within the statutory time limit, as after the reconsideration to the original specific administrative act, and review authorities maintained the original specific administrative act, the legal trial period of timely decision.

  (seven) the reconsideration organ in the court shall review period did not make a reconsideration decision or based on the same facts and reasons made the decision with the original reconsideration is basically the same as the reconsideration decision, how to deal with the problem

   This kind of case is not much, but the reconsideration organ in the court shall review period did not make a reconsideration decision, is to refuse illegal judgment for performance, the organ for reconsideration based on the same facts and reasons made the decision with the original reconsideration reconsideration decision is basically the same, negative confrontation judgment execution behavior, appear the situation greatly damage the judicial authority, increases the fatigue of the parties concerned, some parties in the reconsideration and litigation toss back and forth between the three years, five years or can not solve the real problem. First, the plaintiff may have the right to sue the choice of not fulfilling the reconsideration, the original specific administrative act, the same basic decision of reconsideration. Secondly, if the plaintiff does not fulfill the reconsideration duties or basically the same the reconsideration decision to institute administrative proceedings, the people's court shall determine that the reconsideration organ refuses to fulfill the people's court verdicts, according to the "administrative procedure law" article sixty-fifth ", referring to the provisions of the civil procedure law" in article 102nd, take the defendant shall make an administrative reconsideration decision from the date of up to the date of the decision of administrative reconsideration, the daily ranging from 50 yuan to 100 yuan fine, but can also impose a fine on the main person in charge of the administrative organ or the person directly responsible punishment; or to the administrative organ at the next higher level or the supervisory, personnel department put forward judicial proposals; is serious enough to constitute a crime, shall be investigated for the criminal liability of persons in charge and other persons directly responsible according to law. But the feasibility of these penalties and measures is very poor, mainly responsible for the reconsideration organ is often the Secretary, mayor and other leaders, some leading cadres are the people's elected representatives, some party appointed, without the participation and support of the party organization, the District Court Property of single force thin impossible in fines to these cadres above, the law is only a kind of ideal of rule of law, it is difficult to execute cost is the judicial authority is damaged, the parties are sandwiched between the reconsideration and litigation repeatedly "flipping Clay oven rolls".

  (eight) to the administrative organ has the people's court for compulsory execution or after the execution of administrative punishment is mandatory, the parties can apply for administrative reconsideration of the problem

   Typical case: a town government in the city administration of cultural relics of punishment within the statutory time limit does not fulfill, also does not apply for reconsideration or bring a lawsuit, the Municipal Bureau of cultural relics to the people's court for enforcement, the people's court review the legality of the relics of punishment that punishment is not only legitimate, and take legal effect already, then to register and to enforce rule. Cultural relics town government refuses to accept punishment at the Bureau of cultural relics to the Municipal People's government to apply for administrative reconsideration, the reconsideration institution accepts the Municipal People's Government of the application for reconsideration, make the revocation of administrative reconsideration of cultural relics administration punishment decision. The town government to the reconsideration decision is based on the people's court for execution of rotary. The administrative power erosion cases to judicial power. The town government has neither filed an application for review within the statutory time limit for application, but also administrative litigation has not filed within the statutory prosecution deadline, has lost the right to apply for review or lodge an administrative lawsuit, cannot seek administrative or judicial relief, the specific administrative act of the original physical punishment has taken legal effect, the town government must carry out the punishment, if the town government do not automatically discharge, the Municipal Cultural Relics Bureau may apply to the court for compulsory execution. The court has ruled enforceable circumstances, the administrative reconsideration organ shall not accept the application for reconsideration to the town government. One reason: the people's court for enforcement of administrative punishment administrative organs, must review the legality of the administrative penalty, administrative punishment in accordance with legal and apply for compulsory execution conditions, the people's court to file and execute, or reject the application for enforcement or not be ruled out. The Municipal Bureau of cultural relics of the cultural relics administrative punishment by the court to review the legality, and has entered the judicial process, the administrative reconsideration organ shall not have the right to re review the. Reason two: to enforce the people's court ruling has confirmed that the punishment of cultural relics administration decided to legally effective, the enforcement of the ruling shall take effect with final effects, not only binding on the parties and the people's court, but also have public power and beam power to whole society, no change or cancellation without legal procedures, the parties and related personnel must be performed, including the administrative reconsideration organ must also fulfill the people's court shall order. The administrative reconsideration organ has been the people's court decided to legitimate and effective punishment of cultural relics administration, is essentially based on the administrative right to deny the people's court shall order the legal effect, should be identified the nature of the people's court shall refuse to perform the ruling, according to the "administrative procedure law" article sixty-fifth ", referring to the provisions of the civil procedure law" in article 102nd, pursue the corresponding legal liability. Reason three: the administrative reconsideration of administrative procedure, the court for compulsory execution is the judicial procedure, the fact and the same case, the administrative procedure and judicial procedure cannot be used at the same time. According to the basic principles of administrative procedure, administrative procedure prior to judicial proceedings, but into the judicial process, means that the administrative relative person of the administrative relief way loss, administrative procedures can't walk in the judicial process, the administrative reconsideration organ shall not to accept the application for administrative reconsideration, this is also the "non bis in idem principle" requirements. Otherwise the validity of the original specific administrative act and the administrative legal relationship at any time in an unstable state, the force is not withdrawn to the legal procedure, creates the administrative judicial power to interference, contrary to the jurisdiction of higher administrative jurisdiction and judicial final settlement principle. Therefore, shall confirm the reconsideration organ accepts accepts the application for reconsideration of the illegal behavior of the town government, make a reconsideration decision is illegal.

   But the law of the reconsideration decision confirming the illegality judicial start-up procedures necessary is not set. The applicant to revoke the relics sanction purpose, not through administrative litigation to start the procedure of judicial review, by the Municipal Bureau of cultural relics without the plaintiff qualifications of administrative proceedings, administrative proceedings shall not have the right to start to confirm the reconsideration decision illegal, the case and no other interested parties the rights and interests, leading to the reconsideration decision only in illegal state. The wrong decision of reconsideration or other legal ways to correct, lead to correct the original specific administrative act validity "not clear", on the one hand by the people's court administrative enforcement of non litigation legal review, confirmed the legitimate and implemented, on the other hand is the administrative reconsideration organs revocation, the municipal cultural relics Bureau also nowhere ". Statement". This is typical of the abuse of administrative reconsideration relief rights, the exercise of administrative organ for reconsideration to the administrative reconsideration behavior against the people's court for compulsory execution right, the social management order in an unstable state case, vacuum exposed the legal exercise of administrative reconsideration to the administrative reconsideration organ right of supervision. Power without supervision is easy to breed corruption, can not be ruled out the person to be enforced and the reconsideration organ to collusion risk evasion of legal obligation.

  (nine) to deal with the problem during the administrative reconsideration application for enforcement of specific administrative act

"Administrative procedure law" provisions of article forty-fourth of the administrative proceedings the specific administrative act shall not stop the implementation of the principle, the same, "Administrative Reconsideration Law" stipulates that the twenty-first administrative reconsideration period the principle of not stopping executing agency action, should be clear, the two principles are applicable to administrative agencies have enforcement power and self enforcement situation. The people's court in the administrative reconsideration period authority for enforcement by the specific administrative act, "explain" shall refer to the number of ninety-fourth: "in the course of legal proceedings, the defendant or the specific administrative act to determine the right people apply to court for enforcement of the sued specific administrative act, the people's court shall not be executed, but not implemented in a timely manner will give national interests, public interests or the legitimate rights and interests of others cause irreparable losses, the people's court may advance execution. The latter for compulsory execution, shall provide the corresponding property guarantee." The general people's court refuses to execute, but not implemented in a timely manner will give the national interests, public interests or the legitimate rights and interests of others cause irreparable losses, the people's court may advance execution. Prior to the execution of a legally effective after a decision of administrative reconsideration or administrative judgment that is illegal, the resulting liability of administrative relative person legitimate rights and interests of damage, shall be for the implementation of the administrative agency, the people's court shall not assume any liability to pay compensation.[2]

  (ten) the problem after the reconsideration of the original specific administrative action evidence effect

   The effectiveness of the 1 defendants in the reconsideration, the reconsideration organ agreed to collect the evidence. "Administrative review law" twenty-fourth stipulates: "in the process of administrative reconsideration, the respondent shall not to the applicant and other relevant organizations or individuals to collect evidence." The defendant in the process of administrative reconsideration, independently from the applicant and other relevant organizations or individuals to collect evidence, is a serious violation of the statutory procedures to collect evidence, not as a people's Court upheld the sued specific administrative behavior according to the. But the applicant or the reconsideration of the third people in the process of administrative reconsideration, arguing over the reason not put forward in the implementation of the specific administrative act process or the evidence, the consent of the reconsideration organ, the defendant in this rebuttal reasons or evidence of new evidence, to argue for that the applicant or the third person of the the new proposed or evidence can not be established, can be used as indirect evidence that specific administrative acts being sued legitimate evidence, can not be directly identified as specific administrative acts being sued legitimate evidence, can not be directly used as evidence. The defendant to provide its collection before making the specific administrative action evidence can not prove that specific administrative acts being sued the truth to the court, the court should be identified the specific administrative act is insufficient evidence, the judgment shall be revoked.[3]

   2, the defendant submitted effect in the process of reconsideration to the reconsideration organ fails to submit the evidence to the court in the proceedings. "Specified in the first paragraph of article twenty-third of the administrative reconsideration law": "the respondent shall apply for a copy of a book or the copy of the application record within 10 days from the date of receipt, give a written reply, and submit the original specific administrative acts of the evidence, basis and other relevant materials." Article twenty-eighth (four) states: "the respondent is not in accordance with the provisions of this Law twenty-third article give a written reply, submit the original specific administrative behavior, based on the evidence, decided to withdraw the specific administrative act." The defendant in the process of administrative reconsideration fails to submit to the administrative organ for reconsideration shall presume the evidence, the evidence was not as its verdict, not as determined by the specific administrative act is legal according to the application for reconsideration, nor as a people's Court upheld the sued specific administrative behavior according to the. In practice, this is often occurred in the administrative organs in the review period not to the reconsideration organ to provide any evidence, be reconsideration organ refuses to accept the reconsideration of the specific administrative act, in third, to the reconsideration organ for the defendant to the people's court administrative proceedings to revoke the decision of reconsideration, maintaining the original specific administrative act, in the course of legal proceedings, administrative agency by the plaintiff submitted to the original specific administrative act, on the basis of evidence to the court. The people's court is to review the legitimacy the reconsideration decision, the review focuses on is whether the applicant had made the specific administrative act, on the basis of evidence not submitted within the statutory time limit, the legitimacy instead of the original specific administrative act, the applicant of the original specific administrative act of the plaintiff submitted evidence, evidence was found to be associated with the case, of course not admissible. Therefore, the evidence submitted by the applicant, according to the reconsideration organ, is not only the right, but also its obligations, and it obeys the reconsideration organ command responsibility and discipline, it must bear the legal consequences of not responsibility, violate discipline behavior.

   (eleven) the reconsideration organ or the administrative organ at a higher level to confirm the normative documents effective can be as the basis of decision problems

   "Administrative review law" provisions of article seventh, the citizen, legal person or other organization that provides normative document according to the concrete administrative behavior rules of illegal, on the specific administrative act of the application for administrative reconsideration, they may also apply for examination of these Provisions to the administrative reconsideration organ. In practice, the specific administrative act may apply for reconsideration at the same time, put forward together with the review of abstract administrative act on the basis of the application is very few, at present Zibo has not appeared a case. Although the abstract administrative act validity review does not belong to the scope of administrative litigation, but doesn't mean that you can't abstract administrative act the people's court according to the specific administrative act review. According to the "administrative procedure law" article fifty-second and article fifty-third, the people's courts shall, should be based on the laws and administrative regulations, local regulations, autonomous regulations and separate regulations, according to rules and regulations. But that does not mean that the people's courts shall be completely does not need to consider the provisions of regulations normative documents of the normative document, the provisions of the administrative organs and their internal mechanism formulated and promulgated in the purview of the regulations, as long as consistent with the provisions of law, regulations and rules, the people's court shall in principle be admitted the validity, can refer to in the trial of administrative cases when. After a review of the reconsideration organ or the administrative organ at a higher level, to confirm the provisions of regulations normative documents of the legal and effective, the people's court to review the legality still deal with these normative documents, in conflict with the law, shall not be used as the basis of judge.

   Twelve.The main qualification authorization rules

   As early as in the "Reconsideration Regulations" implemented, "reconsideration" and "administrative procedure law" in the provisions of the applicant and defendant by the inconsistent. "The regulations" twenty-eighth article: "make laws, regulations and rules of the specific administrative act authorized organization, the organization is the respondent". And the "administrative procedure law" the twenty-fifth stipulation: "the specific administrative act authorized by the laws, regulations of the organizations, the organization is the defendant". With the "administrative procedure law" consistent, then the "Administrative Reconsideration Law" to cancel the rules authorized organization can be used as the respondent shall. But the "interpretation" of the provisions of the third paragraph: "Twelfth laws, regulations or rules authorize the administrative organs of internal organs, agencies or other organizations, the implementation of administrative behavior beyond the authorized scope, if a party refuses to accept the lawsuit, should be the implementation of the behavior of institutions or organizations as the defendant, and regulations" authorized organization clearly defined can be taken as the defendant of administrative litigation. The promulgation of the "Regulations" does not reflect the changes of several "explanation", the provisions of article fourteenth: "dispatched institutions, administrative organs set up within institutions or other organizations, except as authorized by laws and regulations, foreign made in its own name, the specific administrative act, the administrative organ shall be the respondent", has caused the rules authorized organizations in aspects of the applicant and defendant qualification of non convergence. We think, some organizations authorized to undertake a specific administrative act, should be placed at the level of laws and regulations, but not by regulations authorized, "provisions for some explanation of" questionable. Amendments "administrative procedure law", the rules of empowered organization qualification status to make provisions, consistent with the administrative reconsideration and the administrative litigation subject qualification authorized organizations in the rules set.

   (thirteen) the administrative reconsiderationDiscontinuation of justiciability of notice

  "Regulations" provisions of article forty-first, the legal circumstances appear in the process of the administrative reconsideration, the administrative reconsideration organ may suspend the activities of administrative reconsideration. The administrative relative person of the administrative reconsideration organ can not stop a lawsuit. The main reasons are: the suspension of administrative reconsideration in administrative reconsideration is in the process of procedural matters, do not have a real impact on the substantive rights and obligations of the parties. If the administrative reconsideration organ to abort by indefinitely the circumstances of the case, the parties to the administrative reconsideration organ fails to act or the original specific administrative act in administrative litigation.

  (fourteen) Notice of termination of reconsideration is made, whether the original specific administrative act again apply for reconsideration or bring a lawsuit problem

   "Regulations" provisions of article forty-second: "any of the following circumstances during the administrative reconsideration, the administrative reconsideration termination: (a) the applicant requests to withdraw the application for administrative reconsideration, the administrative reconsideration department approved the withdrawal; (two) the applicant's death as a natural person, no close relatives or their close relatives to give up the right to administrative reconsideration; (three) as the applicant's legal person or other organization is terminated, the rights and obligations gives up the right of administrative reconsideration; (four) the applicant and the applicant in accordance with the regulations in article fortieth, the administrative reconsideration institutions allow reconciliation; (five) the applicant applies for administrative reconsideration to the compulsory administrative measures administrative detention or restriction of people freedom, by the applicant with a suspected criminal violations, the mandatory administrative measures of the administrative detention or restriction of personal freedom of the changes to the criminal detention". The article (a), (four) cases because the parties reached a settlement agreement or other reasons withdraws the application for reconsideration, the administrative reconsideration organ termination decision making, means that administrative disputes have been resolved, the applicant has to dispose of his rights, the parties to the administrative reconsideration of the same facts and reasons for applying for, if without justified reasons, the administrative reconsideration organ shall not accept. However, if the applicant withdraws the application for reconsideration is against their true meaning, for example by the administrative organs of the coercion or deception and withdrawn, once again put forward the application for reconsideration, as long as compliance with the statutory conditions, the administrative reconsideration organ shall accept the application. "The implementation of the second regulations" thirty-eighth rules "if the applicant withdraws the application for administrative reconsideration, shall be based on the same facts and reasons for applying for administrative reconsideration. However, the applicant can prove that except for the withdrawal of the application for administrative review against its true meaning." That reflect this spirit. Also, make an administrative reconsideration organ shall terminate the reconsideration decision, the applicant again based on the same facts and causes of action, if there is no justifiable reason, the court shall not accept it. However, if the applicant withdraws the application for reconsideration is considered against their true meaning, for example by the administrative organs of the coercion or deception and withdrawn, selective procedures, the administrative relative person can be directly filed a lawsuit against the original specific administrative act. The necessary procedures, can not bring an administrative lawsuit to the original specific administrative behavior directly, it can be re made the application for reconsideration to the original specific administrative act. In the "Regulations" of article forty-second (two), (three), (five) case, once eliminate the cause reconsideration terminates, subject to conditions, the applicant may apply for reconsideration to the original specific administrative act. Selective procedures, the administrative relative person can be directly filed a lawsuit against the original specific administrative act. The necessary procedures, can be re made the application for reconsideration to the original specific administrative act.

   (Fifteen) the parties fails to perform the administrative reconsideration reconciliation agreement, how to deal with the problem

   "Regulations" provisions of article fortieth: "apply for administrative reconsideration refuses to accept a specific administrative act discretion of citizens, legal persons or other organizations for the administrative organ to exercise legal, regulations made by the applicant and the applicant, before making a voluntary reconciliation in administrative reconsideration decision, it shall submit a written agreement to the administrative reconsideration institutions; and the content does not damage the public interests and the legitimate rights and interests of others, the administrative reconsideration department shall grant". The creation of the administrative reconciliation system, realized the interface with the system of administrative litigation case. But not required if one party goes back on his word or the applicant, third people not to perform the mediation agreement, how to guarantee the performance of the settlement agreement problem. Some people think that, since the settlement is in equality, voluntary, legal principle, the settlement agreement the parties shall agree on the civil parties in civil contract, on this type of reconciliation agreement may not apply for reconsideration nor a lawsuit. If a party goes back on his word not to fulfill the settlement agreement, the termination of administrative reconsideration, the other party may request the other party to fulfill its commitments in accordance with the law. If the applicant, the third person fails to perform the administrative compulsory execution, or apply to the people's court for compulsory execution; if the applicant fails to be, can be performed by the superior administrative organ shall order. But the disadvantages are: if the conciliation agreement can not be fulfilled, the parties will bring executive program, no doubt the parties to obtain relief time delay, and draw further apart efficiency principle of administrative reconsideration economic, quick, simple. We believe that the settlement agreement, between the administrative reconsideration is after all not equal civil main body of civil contract, should learn from the successful experience of withdrawal of administrative litigation system in its system design: the applicant and the applicant or the third party in the administrative reconsideration decision is made reach a voluntary settlement, the applicant requests to withdraw the application for administrative reconsideration, fulfilling the content and fulfilled, the administrative reconsideration department approved the withdrawal, the termination of administrative reconsideration; not immediately or one-time performance, the administrative reconsideration department can be withdrawn, or the suspension of administrative reconsideration. In granting the applicant withdraws the application for administrative reconsideration decision, the termination of administrative reconsideration decision or the suspension of administrative reconsideration decision, the main content of the settlement agreement can be specified and fulfillment, and can according to the specific situation of the case, in the decisive reason clearly is for all or part of the specific administrative act is not executed. If any party fails to fulfill the settlement agreement, the administrative reconsideration department shall be legal and appropriate to continue to review the original specific administrative act, to make the decision of reconsideration.

  (sixteen) the problem of justiciability of the petition review behavior superior administrative organ refuses to accept the administrative reconsideration behavior on the litigant's appeal to reply and the executive authorities of the

   "Petition regulations" fourteenth paragraph second: "according to the law should be resolved through litigation, arbitration, administrative reconsideration and other legal means to file a complaint, the complainant shall present them to the relevant organs in accordance with the provisions of relevant laws, administrative regulations and procedures". But this does not mean that the administrative organ makes a petition, the petition review all reply reply, review can file an administrative reconsideration or litigation. The administrative organ for reconsideration, to have lost the lawsuit rights of petition, after review, made the decision, if the review is to confirm the specific administrative act has been in force since there is no right, determine the new relationship between rights and obligations, rights and obligations of the petitioner did not produce new effects, are repeated processing behavior, does not belong to the scope of administrative litigation. If this kind of behavior into the scope of administrative reconsideration or administrative litigation, is actually a reconsideration of the limitation and limitation of action to cancel in fact, influence the stability of relative person of the administrative management of the administrative trust and administrative legal relationship. But if you make a written reply that the reconsideration organ shall not accept or other entity reconsideration decision is illegal, the review will bring new influence to the complainant and other administrative law the parties rights and obligations, the plaintiff and other administrative legal interested person may file an administrative lawsuit. At the same time to prevent some of the administrative organ in the name of the actual processing, infringes upon the lawful rights and interests of the relative people of the administration behavior exists, if the review decision on the appeal of the relationship between rights and obligations affected, legally, the decision made after administrative reconsideration or should be included in the scope of administrative litigation.