Legal information

For some administrative disputes, the law requires the parties involved to first apply for administrative reconsideration to the administrative agency. If they are not satisfied with the result of the reconsideration, they can only go to court to sue. This is "Pre-consideration". If you skip the review and go directly to litigation, the court will not accept it. This time, the new regulations have greatly detailed and clarified the circumstances before reconsideration. The changes are relatively large. Lawyer Ying Ting is here to talk about it in detail.

Why should we set the reconsideration prefix?

Some friends may ask: Why do some cases have to be reconsidered first and then litigated, instead of being sued directly in court? There is a system design consideration here. Administrative review is an error correction mechanism within administrative agencies. The review agency can conduct a comprehensive review of the original administrative action, including factual and legal issues. If the review authority can take the initiative to correct errors, it will not only protect the rights and interests of the parties, but also help improve administrative efficiency and reduce the burden on the court. In particular, for some highly professional and technical administrative disputes, such as the confirmation of natural resource rights and the authorization of intellectual property rights, it may be more efficient and professional for the review authority to handle them first than to go directly to the court.

The new regulations clarify several types of preconditions

The new regulations have systematically sorted out and refined the circumstances that precede reconsideration, mainly including the following categories: first, those who are dissatisfied with the decision to confirm natural resource rights must first apply for reconsideration; second, those who are dissatisfied with the expropriation and compensation decision must first apply for reconsideration; third, those who are dissatisfied with the administrative actions taken by social insurance agencies must first apply for reconsideration; fourth, those who are dissatisfied with the government information disclosure response must also review first in principle; fifth, those ordered by administrative agencies to suspend production and business, revoke licenses, etc.major administrative penaltiesThose who are dissatisfied will also be included in the scope of reconsideration. In the past, some of these situations were scattered in various separate laws, and some were understood differently in practice. This time, the new regulations have made a centralized clarification.

Pitfalls that are easy to step on in practice

In practice, the most common problem with pre-examination is that the parties do not know that the case must be reconsidered first and go directly to the court to sue. The court rules that it will not accept the case or dismisses the lawsuit. If the party concerned goes back and applies for reconsideration, the 60-day application period may have expired. How to deal with this situation? The new regulations grant a special protection: the filing deadline is recalculated from the date the court ruling takes effect. In other words, the time when you entered the litigation process by mistake is not included in the time limit for reconsideration application. We also mentioned this in the last episode. Therefore, after receiving the court’sRuling of inadmissibilityFinally, don’t panic, apply for administrative reconsideration quickly, there is still time.

How to judge whether to reconsider first?

A simple and crude judgment method: receivedadministrative decisionFinally, check to see if it says "You can apply for administrative reconsideration in accordance with the law" or "You should apply for administrative reconsideration first." If it says "you should apply for administrative review first", then the review is preempted and you cannot go to the court directly. If you only write "you can apply for administrative reconsideration" or "you can file a lawsuit in court", you can choose to review it first or litigate directly. If there is nothing written in the document and you are not sure, it is recommended to consult a lawyer first to understand the procedures before taking action. Otherwise, if you choose the wrong procedure, you will lose time, and you may lose the right to reconsider or litigate due to the expiration of the deadline, which is not worth the gain.

[Lawyer Yingting’s conclusion]

The clarification of the pre-examination system is a major improvement brought to practical work by this new regulation. It reduces the ambiguity in procedural selection, allowing both parties and agencies to more accurately grasp the direction of the case. For our administrative counterparts, the first thing to do when receiving an administrative decision letter is to read clearly what is written on it, how to proceed with the procedure, and understand it before taking action.