The Normative Application of the Principle of Prohibiting Adverse Change

DOI: https://doi.org/10.62517/jel.202614222

Author(s)

Hailu Wang

Affiliation(s)

School of Law, Tianjin University of Commerce, Tianjin, China

Abstract

The principle of prohibiting adverse changes in administrative reconsideration means that when an applicant, dissatisfied with an administrative act, applies for reconsideration, the reconsideration authority shall in principle not make a reconsideration decision that is more adverse to the applicant. This principle was first established in Article 51 of the Regulations on the Implementation of the Administrative Reconsideration Law. Although the new law has elevated its normative level, there remain grey areas in its specific application logic and interpretative approach: first, an inherent conflict with the principle of correcting errors whenever discovered; second, a relatively low normative level and insufficient authority; third, vague scope of application, making accurate application difficult; fourth, overly narrow exceptions. These issues directly lead to many obstacles in judicial application. Article 63(2) of the new Administrative Reconsideration Law responds to the above difficulties to a considerable extent: on the one hand, it elevates the principle to the statutory level, enhancing its normative effect; on the other hand, it moderately expands its scope of application and explicitly provides for exceptions. Nevertheless, the normative structure of this principle still needs further improvement. In the future, progress should be made from two dimensions: first, regarding the scope of application, it should not be limited to the scope of the party’s reconsideration request but should extend to modification decisions, revocation decisions, and revocation with remand for a new decision; second, regarding the limits of application, the coordination mechanism with the principles of law-based administration and correcting errors whenever discovered needs to be further clarified, ensuring that the principle fulfills its rights-protection function without unduly restricting the reconsideration authority’s power of supervision and correction.

Keywords

Administrative Reconsideration; Prohibition of Adverse Changes; Administrative Disputes

References

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