Key revisions to the Administrative Reconsideration Law

By Chen Zhuo, Zheng Yeye, and Lyu Binrui, Tian Yuan Law Firm
0
298
LinkedIn
Facebook
Twitter
Whatsapp
Telegram
Copy link

On 1 September 2023, the revised Administrative Reconsideration Law (the new ARL) was adopted at the fifth session of the 14th National People’s Congress, and is expected to come into force on 1 January 2024.

Compared with the previous Administrative Reconsideration Law (2017 Revision), the new ARL, with a focus on “maximising the role of administrative reconsideration as the main channel for resolving administrative disputes”, makes comprehensive revisions to the scope, jurisdiction, trial procedure and decision of the law. This article comments on the significant changes from a practical point of view.

Expansion of scope

Chen Zhuo, Tian Yuan Law Firm
Chen Zhuo
Partner
Tian Yuan Law Firm
Tel: +86 138 1041 7260
E-mail: chenzhuo@tylaw.com.cn

To enhance the capacity of the system to take on administrative disputes, the new ARL expands the scope of administrative reconsideration, as well as the scope of pre-reconsidered items.

The new ARL takes a “approval + denial” approach to determining the scope of administrative reconsideration. Administrative compensation, work-related injuries, administrative agreements and other items designated by the government to be disclosed, excluded, or have restricted competition are explicitly included into the scope of administrative reconsideration. A negative list was also compiled, which includes acts of the state, normative documents, internal personnel management and mediation for civil disputes. Overall, more administrative disputes are covered.

On the basis of the right to use natural resources provided in the original ARL, the new ARL designated administrative punishment decisions made on the spot, non-disclosed government information, failure to perform statutory functions and other such items as pre-reconsidered items. The party should first initiate administrative reconsideration for such items, but may launch an administrative lawsuit if refusing to accept the reconsideration decision.

It has been contested that the preliminaries of administrative reconsideration may lead to a prolonged remedy with low effectiveness. However, administrative cases are in practice as expansive as they are numerous, with very few of them requiring intensive adjudication. A fast-tracked reconsideration process can help efficiently resolve conflicts, divert disputes and thus alleviate the burden on the courts.

Centralisation of jurisdiction

Zheng Yeye, Tian Yuan Law Firm
Zheng Yeye
Associate
Tian Yuan Law Firm
Tel: +86 188 1304 4692
E-mail: zhengyeye@tylaw.com.cn

In the new ARL, the jurisdiction system adopts a horizontal approach over a vertical one. To be specific, under the new ARL, with the exception of administrative organs that implement vertical leadership, taxation and national security authorities where the superior authority continues to serve as the reconsideration body, all applicants should seek administrative reconsideration with the people’s government at the same level.

The centralisation of jurisdictions should lower the chance of shirking responsibilities, as well as prevent inconsistent rationales and standards between multiple reconsideration bodies. The personnel responsible for reconsideration, now with access to greater concentration of cases and resources, should be able to quickly gain experience, which lays a foundation for building a professional and specialised reconsideration team.

Furthermore, the revised jurisdiction rules reduce upward or cross-regional mobility of administrative disputes, with a specific system established to bump up jurisdiction to the superior level. Enhancements were also made to the supervisory system to avoid the “home and away” phenomenon in administrative reconsideration. How these upgrades pan out requires further observation.

Improvement of trial

To improve the credibility of administrative reconsideration, the new ARL makes holistic improvements to the trial process. Especially noteworthy is the establishment of the “complexity and simplicity” classification trial mode and administrative mediation system.

While the original ARL takes the singular approach of written review, the new ARL adopts the principle of “quick trial for simple cases, elaborate trial for complex cases”. Reconsideration cases applicable for the simplified procedure enjoy a shorter duration and may be submitted for written review; while in the ordinary procedure, both parties’ statements should be heard and, depending on the situation, hearings may be convened and the reconsideration committee may be consulted.

The diversion of cases saves much time and energy for participants of simple cases, conserves trial resources and more effectively protects the parties’ right to information, participation and redress, enhancing fairness both procedurally and substantively.

The new ARL for the first time includes clearly stipulated provisions on the mediation system at the legal level, while also drastically widening its applicability, so that mediation is open to all types of cases subject to the satisfaction of statutory condition, and is no longer limited to specific administrative acts made by administrative organs in the exercise of discretionary power, compensation or indemnification.

In practice, as administrative reconsideration applications may not always reflect the parties’ genuine needs, there is considerable general interest in mediation. For example, reconsideration applications on the disclosure of government information are often used to reveal concealed interests or put pressure on the administrative organs to solve other problems.

However, administrative organs sometimes have the concern that the mediation is an irregular method of dispute resolution that potentially undermines the authority of law, and its willingness to mediation is relatively low. The new ARL seeks to address these concerns and helps the parties find a solution that maximises interests.

Refinement of decision

The new ARL further refines the decision system in administrative reconsideration. Detailed articles are provided for changing the decision, withdrawing the decision and decision to affirm illegality. More scenarios may result in a change of decision, with additional types of decisions such as void confirmation and order to perform administrative agreement added to the lineup. Where the administrative act is found to be illegal or inappropriate, an opinion on administrative reconsideration may be issued.

The effectiveness of the administrative reconsideration system relates directly to the administrative capacity to resolve disputes. The new ARL is expected to greatly facilitate the adoption of flexible, diversified and targeted approaches to administrative dispute resolution.


Chen Zhuo is a partner at Tian Yuan Law Firm. He can be contacted at +86 138 1041 7260 or by e-mail at chenzhuo@tylaw.com.cn.
Zheng Yeye is an associate at Tian Yuan Law Firm. She can be contacted at +86 188 1304 4692 or by e-mail at zhengyeye@tylaw.com.cn.
Lyu Binrui, an associate at the firm, also contributed to the article

LinkedIn
Facebook
Twitter
Whatsapp
Telegram
Copy link