Implementing the Regulations on the Implementation of the Administrative Reconsideration Law and Strengthening the Administrative Reconsideration of Land and Resources

Administrative reconsideration is an important legal system for administrative organs to solve administrative disputes, resolve social contradictions and strengthen hierarchical supervision according to law. 1999 65438+ 10/0/After the implementation of the Administrative Reconsideration Law, administrative reconsideration organs and administrative reconsideration institutions at all levels actively performed their duties, earnestly safeguarded the legitimate rights and interests of citizens, legal persons and other organizations, and supervised the administrative organs to exercise their functions and powers according to law. On May 29th, 2007, the State Council promulgated the Regulations on the Implementation of the Administrative Reconsideration Law (the State Council Decree No.499), which put forward new and higher requirements for administrative reconsideration.

First, the status quo of administrative reconsideration of land and resources

The administrative reconsideration system is established according to China's national conditions, and it is a unique internal supervision system and relief system of administrative organs in China. The construction of administrative reconsideration system is an important task of China's legal system construction. 1990 65438+On February 24th, the State Council promulgated the Regulations on Administrative Reconsideration to establish a unified administrative reconsideration system; 1999 On April 29th, the Ninth Standing Committee of the Ninth National People's Congress deliberated and passed the Administrative Reconsideration Law, and further improved the administrative reconsideration system on the basis of summing up the practical experience since the implementation of the Regulations on Administrative Reconsideration formulated by the State Council. After the implementation of the Administrative Reconsideration Law, the administrative reconsideration organs of land and resources have carried out extensive study and publicity work, guided the masses to express their interests through rational and legal means such as administrative reconsideration, and handled administrative reconsideration cases in a legal, fair and timely manner. Many contradictions have been solved in the initial stage and administrative procedures, and the administrative reconsideration of land and resources has made great achievements.

(1) The administrative reconsideration system was initially formed. On June 28th, 20001year, the fifth ministerial meeting of the Ministry of Land and Resources deliberated and passed the Provisions on Administrative Reconsideration of Land and Resources (Order No.8 of the Ministry of Land and Resources). According to "Administrative Reconsideration Law", combined with the actual work of land and resources management, the administrative reconsideration of land and resources is clearly defined. Various localities have also established supporting systems for administrative reconsideration in light of the actual work, and a relatively complete administrative reconsideration system has been formed.

(2) Actively accept administrative reconsideration. Since the implementation of the Administrative Reconsideration Law, the administrative reconsideration organ of land and resources has actively accepted applications for administrative reconsideration. From 2003 to 2006, provincial land and resources management departments received a total of 5,287 applications for administrative reconsideration, with an average growth rate of 1 1%. Among the applications for administrative reconsideration received, the acceptance rate is 66%.

(3) The administrative reconsideration institutions are constantly improving. Land and resources management departments at all levels are basically equipped with full-time reconsideration personnel, and some places have set up special administrative reconsideration institutions, and the working conditions for administrative reconsideration are basically available.

(4) The way of handling cases is constantly innovated to effectively resolve contradictions. The administrative reconsideration institutions of land and resources actively explore, constantly innovate the way of handling cases, and improve the efficiency and quality of handling cases in the application of summary procedures, field investigation and evidence collection, public hearings, expert argumentation, collective joint hearings, and the use of administrative mediation and administrative reconciliation. Timely settlement of administrative reconsideration cases in accordance with the law has solved a large number of administrative disputes and promoted social harmony and stability.

(5) Give play to the function of error correction. According to the review results of administrative reconsideration cases, the cases of canceling, ordering to perform duties according to law and confirming that administrative acts are illegal account for 8% of the total cases concluded by provincial land and resources management departments and 14% of the total cases concluded by the Ministry of Land and Resources. Through administrative reconsideration, some illegal or improper administrative acts have been corrected, which has played a supervisory role in the exercise of functions and powers by administrative organs according to law and promoted administration according to law. Some localities have also actively explored ways to change the practice of discussing reconsideration on the spot, combined handling administrative reconsideration cases with improving land and resources management, and established an administrative reconsideration proposal system.

With the change of the situation, new contradictions and problems are constantly emerging, and the administrative reconsideration work is facing more severe challenges: First, the number of administrative reconsideration cases is rising, and the application items for administrative reconsideration involve a wide range. Second, the number of difficult and complicated cases is increasing. Many cases are linked by civil relations and administrative relations, with a long time span, a large number of people involved, complicated relationships and complicated cases. Third, many applications for reconsideration are hot and difficult issues related to the current land and resources management. Fourth, the social impact is significant. The result of a case often causes a chain reaction. If it is not handled well, it will affect social stability. Fifth, the difficulty of responding to administrative litigation caused by reconsideration cases is increasing. There are often differences in the understanding of the law between the reconsideration organ and the people's court, and some issues need to be repeatedly communicated and coordinated with the people's court to reach an agreement.

Two, the "Regulations on the Implementation of the Administrative Reconsideration Law" put forward new requirements for administrative reconsideration of land and resources.

In September 2006, the Central Committee of the Communist Party of China and the State Council put forward clear requirements for preventing and resolving administrative disputes and improving the administrative dispute resolution mechanism. On May 29th, 2007, the State Council promulgated the Regulations on the Implementation of Administrative Reconsideration (hereinafter referred to as the Regulations), which took effect on August 6th, 2007. On the basis of summarizing the experience since the implementation of the Administrative Reconsideration Law, the Implementation Regulations further refine the administrative reconsideration system. The implementation of the Implementation Regulations puts forward new requirements for the administrative reconsideration of land and resources.

(1) Actively accepting cases and safeguarding people's right to apply for administrative reconsideration.

In view of the problem that the current channels for administrative reconsideration are not smooth enough, the Implementation Regulations make further detailed provisions on facilitating people to apply for administrative reconsideration and actively accepting applications for administrative reconsideration in accordance with the requirements of effectively protecting people's right to apply for administrative reconsideration. According to the Implementation Regulations, applicants can submit applications for administrative reconsideration in person, by mail, by fax or orally, and qualified administrative reconsideration institutions can accept applications for administrative reconsideration in the form of e-mail. This requires the administrative reconsideration organ of land and resources to truly "people-oriented, reconsideration for the people", and all cases that meet the scope of accepting cases stipulated in the Administrative Reconsideration Law and its implementing regulations will be accepted; Acceptable or unacceptable, it should also be accepted in the principle of positive acceptance, and effectively solve the problem of "difficult complaints" among the people. Matters that do not belong to the scope of administrative reconsideration according to law or should be solved by other means should also be carefully reviewed and explained, and the channels for settlement should be informed to avoid intensification of contradictions.

In addition, the "Implementation Regulations" also stipulates that if a specific administrative act involves people's property rights without informing them of the remedies, the time limit for applying for administrative reconsideration is as long as 20 years. Land and resources management involves many people's property rights such as land use right, exploration right and mining right. When making a specific administrative act, we should adhere to administration according to law and actively inform the litigation rights.

(two) improve and innovate the trial mode, improve the quality of handling cases.

The Implementation Regulations stipulate the systems of hearing, reconciliation and mediation, which provides an institutional basis for the administrative reconsideration organs and administrative reconsideration institutions to hear cases more conveniently and flexibly. Article 33 of the Implementation Regulations stipulates that major and complicated cases may be heard in court at the request of the applicant or when the administrative reconsideration institution deems it necessary. Article 40 stipulates that if a citizen, legal person or other organization refuses to accept a specific administrative act made by an administrative organ in exercising its discretion as prescribed by laws and regulations and applies for administrative reconsideration, if the applicant and the respondent reach a settlement voluntarily before the administrative reconsideration decision is made, they shall submit a written settlement agreement to the administrative reconsideration institution; If the content of the settlement does not harm the public interests and the legitimate rights and interests of others, the administrative reconsideration institution shall allow it. Article 50 stipulates that under any of the following circumstances, the administrative reconsideration organ may mediate in accordance with the principle of voluntariness and legality: ① A citizen, a legal person or any other organization refuses to accept a specific administrative act made by an administrative organ in exercising its discretion as stipulated by laws and regulations and applies for administrative reconsideration; The administrative reconsideration organ may mediate administrative compensation or administrative compensation disputes between the parties in accordance with the principle of voluntariness and legality.

(C) increased the types of administrative reconsideration decisions

In order to better solve the new situations and new problems in the process of handling administrative reconsideration cases, the Implementation Regulations add the types of administrative reconsideration decisions to reject administrative reconsideration applications on the basis of the types of administrative reconsideration decisions such as maintaining, revoking, changing and confirming illegality stipulated in the Administrative Reconsideration Law. According to the provisions of the Implementation Regulations, the decision of the administrative reconsideration organ to reject the application for administrative reconsideration is divided into two situations: first, the applicant thinks that the administrative organ fails to perform its statutory duties to apply for administrative reconsideration, and after accepting it, the administrative reconsideration organ finds that the administrative organ has no corresponding statutory duties or has performed its statutory duties before accepting it; Second, after accepting the application for administrative reconsideration, it is found that the application for administrative reconsideration does not meet the acceptance conditions stipulated in the Administrative Reconsideration Law and these Regulations.

(four) to strengthen the guidance and supervision of the administrative reconsideration work.

The special chapter of the Implementation Regulations stipulates "the guidance and supervision of administrative reconsideration": First, the administrative reconsideration organ should strengthen the leadership and supervision of administrative reconsideration; Second, the administrative reconsideration organ can put forward written opinions to the competent authorities to correct the relevant administrative violations or do a good job in the aftermath, and the relevant authorities should notify the implementation within the statutory time limit to promote administration according to law and avoid similar illegal acts from happening again; Third, the administrative reconsideration institution shall regularly report the development of administrative work to the administrative reconsideration institution and put forward suggestions for strengthening and improving management; Fourth, the higher-level reconsideration organ should strengthen the guidance and supervision of the work of the lower-level reconsideration organ, and the lower-level administrative reconsideration organ should promptly report the major administrative reconsideration decision to the higher-level administrative reconsideration organ for the record. Land and resources management departments at all levels shall supervise and guide the administrative reconsideration work in accordance with their duties and powers, and strengthen the supervision of the administrative reconsideration institutions at lower levels to perform their duties of administrative reconsideration.

The administrative reconsideration organ of land and resources should constantly study new situations, sum up new experiences, solve new problems, strengthen business guidance, and ensure that the ruling results of similar cases in different regions are basically the same, and that different administrative reconsideration organs have basically the same opinions on the application of the same law. To implement the guidance as a system, through the holding of experience exchange meetings, seminars, case review meetings and other forms to inform the administrative reconsideration work, exchange work experience, study and solve practical problems. The supervision of administrative reconsideration mainly focuses on whether the administrative reconsideration institution accepts the application for administrative reconsideration according to law, whether it transfers the application for administrative reconsideration according to the provisions of the Administrative Reconsideration Law, and whether it makes an administrative reconsideration decision fairly according to law. The standards of supervision, inspection and evaluation depend on whether administrative disputes are resolved, whether the legitimate rights and interests of the people are protected, and whether social harmony and stability are promoted.

Three, to further strengthen the administrative reconsideration of land and resources should pay attention to several issues

Strengthen the leadership of the administrative reconsideration work.

According to the implementation regulations, the leader of the reconsideration organ is the first person responsible for administrative reconsideration. This requires the leaders of the administrative reconsideration organs of land and resources, especially the main leaders, to earnestly take responsibility, put the administrative reconsideration work in an important position, and further strengthen their leadership over the administrative reconsideration work. Improve administrative reconsideration institutions, equip professional administrative reconsideration personnel, provide special administrative reconsideration places and office conditions, solve administrative reconsideration funds, and provide conditions for the smooth development of administrative reconsideration work. Establish a leadership responsibility system, and take whether the channels of administrative reconsideration are smooth, whether the quality of administrative reconsideration is excellent, and whether the establishment of administrative reconsideration institutions is suitable for its tasks as important assessment contents.

Properly handle administrative disputes in various ways.

The Implementation Regulations stipulate the system of reconciliation and mediation, and we should pay attention to the application of these two ways to deal with reconsideration.

When using the reconciliation system, we should pay attention to the following points: first, the specific administrative act applied for should be a discretionary specific administrative act made by the administrative organ in exercising the discretion prescribed by law. For example, some specific acts involving fines or illegal nature can be reconciled or mediated, and some binding administrative acts, such as determining rights and implementing administrative licenses, cannot be applied to the reconciliation system; Second, we should adhere to the principles of equality, voluntariness and legality. The settlement agreement of administrative reconsideration is reached on the basis of clear facts and the willingness of the parties concerned, and shall not violate the prohibitive provisions of the law or harm the national interests, social interests and the legitimate rights and interests of others; Third, the settlement agreement must be reached before the administrative reconsideration decision is made, and a written settlement agreement must be signed; Fourth, the parties reached a settlement agreement, and the administrative reconsideration was terminated with the permission of the administrative reconsideration organ.

There are two situations to apply for administrative reconsideration mediation: first, the applicant refuses to accept the specific administrative act made by the respondent and applies for administrative reconsideration; The second is administrative compensation or administrative compensation disputes between the parties. Mediation should also be conducted on a voluntary and legal basis. The effect of the conciliation statement of administrative reconsideration is different from that of the settlement agreement of administrative reconsideration. The settlement agreement must be approved by the administrative reconsideration organ before it can take effect, and the mediation document has legal effect once it is signed by both parties. If mediation fails, an administrative reconsideration decision shall be made in time.

In addition, we should pay attention to the following points when making a rejection decision: First, it must be made after accepting the application for administrative reconsideration; Second, it must meet the two conditions stipulated in the regulations and cannot expand the scope at will; Third, if the administrative reconsideration organ of land and resources at a higher level thinks that the reason for the administrative reconsideration organ to reject the application for administrative reconsideration is not established, it shall be ordered to resume the trial.

(3) Promoting the administration of land and resources according to law through administrative reconsideration.

Practice has proved that doing a good job in administrative reconsideration of land and resources and correcting illegal or improper specific administrative acts in time can not only guarantee and supervise the land and resources management departments to exercise their functions and powers according to law, but also help to find common problems in administrative law enforcement through administrative reconsideration cases, and promote the continuous improvement and perfection of land and resources management departments, thus promoting the administration of land and resources according to law. The administrative reconsideration organ of land and resources shall issue an administrative reconsideration opinion to the subordinate organ when it finds problems in its management. The administrative department of land and resources, as the respondent, shall check the problems raised in the opinions, summarize them regularly, and report the problems existing in the administrative reconsideration work to the unit leaders or relevant institutions, so as to improve the management of land and resources and further promote the administration of land and resources according to law.