Difficulties and Ways Out for Administrative Reconsideration Organs as Joint Defendants

DOI: https://doi.org/10.62517/jel.202514526

Author(s)

Yan Hu

Affiliation(s)

China Jiliang University, Hangzhou, Zhejiang, China

Abstract

After the amendment of the Administrative Procedure Law in 2014, the practice of "only the original administrative organ shall be the defendant in the case of reconsideration and maintenance of the decision" was changed to "the reconsideration organ shall be the co-defendant". After the amendment of this legislation, the effect of reducing the rate of maintenance of reconsideration decisions and the rate of retrial has indeed been achieved, so as to urge the reconsideration organs to actively perform their duties. However, it will then be found that this practice has made the reconsideration organ face two major difficulties, namely, realistic pressure and institutional contradictions, which reveal the irrationality of the co-defendant rule. The reason is that the reconsideration organ as a co-defendant is based on administrative logic, but its correct positioning should be quasi judicial. Therefore, in terms of seeking a way out, the reconsideration organ shall fully respond to the lawsuit at the stage of occurrence first, and then propose to rebuild the mechanism on the premise that the reconsideration organ is not suitable for being a co-defendant, and point out that the purpose within the administrative law system can also be achieved through improvement or establishment of other means, so as to explore a way out for solving the dilemma.

Keywords

The Reconsideration Organ; Administrative Reconsideration; Reconsideration and Maintenance; Co-defendants; Administrative Proceedings

References

[1]Jiang Mingan: On Several Institutional Innovations in the New Administrative Procedure Law, published in Administrative Law Research, No. 4, 2015, pages 12-21. [2]Chen Jinbo: The unbearable burden: Provincial thinking on the dual defendant system of administrative reconsideration, published in Inner Mongolia Social Sciences, No. 4, 2022, pages 89-97. [3]Zhou Youyong: Review and Remodeling of the Purpose Clause of Administrative Reconsideration Legislation in China, published in Administrative Law Research 2019, Issue 6, pages 14-25. [4]Xiong Changlin: Theoretical logic of the administrative reconsideration organ as the defendant, published in Law, No. 7, 2021, pages 180-192. [5]Sun Haitao and Wang Huifen: The Difficulties and Ways Out of the System of Reconsideration Organs as Joint Defendants, published in the Administration and Law, No. 7, 2020, pages 120-129. [6]Ying Songnian: Opinions on the Amendment of the Administrative Reconsideration Law, published in the Research on Administrative Law, No. 2, 2019, page 3-10. [7]Han Siyang: The inherent logic and institutional presentation of the functional orientation of the main channel for resolving disputes through administrative reconsideration -- with a review of the New Administrative Reconsideration Law, published in the Journal of Jinan University (Social Science Edition), No. 3, 2025, pages 164-175. [8]Lin Lu: The Connection between Administrative Reconsideration and Administrative Litigation Review in the Background of the Revision of the Administrative Reconsideration Law, published in Jinan Journal (Philosophy and Social Sciences Edition), No. 6, 2025, pages 66-87. [9]Ying Songnian: Amendment and Improvement of the Administrative Law and the Administrative Reconsideration Law, China University of Political Science and Law Press, 2013 edition, page 87. [10]Fang Shirong and Shi Youqi: Administrative Law and Administrative Procedure Law, Beijing University Press, 2015 edition, page 515-540. [11]Wang Qingbin: On the Improvement of the System of China's Administrative Reconsideration Committee, published in Administrative Law Research, No. 2, 2013, pages 15-21. [12]Ma Yuanjing: Evidence Connection between Administrative Reconsideration and Administrative Litigation-Provision of the Connection Model of "Duality of Procedure and Integration of Evidence", published in the Journal of Capital Normal University (Social Science Edition), No. 1, 2024, pages 149-159. [13]Huang Hui: The System Evolution and Application logic of Administrative Reconsideration Mediation -- Also on the Revision of Relevant Provisions of the Administrative Reconsideration Law, published in the Law Journal, No. 5, 2024, pages 100-113. [14]Liang Junyu: Reflection and Reoptimization of the Reconsideration System in the View of the Main Channel, published in the Journal of China University of Political Science and Law, No. 5, 2025, pages 289-304. [15]Jiang Mingan: Administrative Law and Administrative Procedure Law, Beijing University Press, 2024 edition, page 333.