行政覆議前置設定的法治實踐

The Rule of Law Practice of Prepositive Administrative Reconsideration

覆議前置屬於行政訴訟制度，應當受行政訴訟法的約束。《行政訴訟法》規定了對覆議前置的容許性、設定權及設定範圍，現受到了《行政覆議法》的挑戰。我國至今設定覆議前置的法律、行政法規總計74部/件，總體上遵循了《行政訴訟法》的規則。省級地方性法規普遍偏好設定覆議前置，規章設定覆議前置違反了法治原則。法律、行政法規曾設定65種行政行為爭議為覆議前置，所採用的標準是“主管部門＋行政行為類型”。現行《行政覆議法》將覆議前置的設定標準發展為“行政行為類型＋屬性”，跳出了主管部門框架，但並不是對法律、行政法規設定覆議前置的行政爭議類型化標準或限制。如果能繼續堅持《行政訴訟法》對覆議前置設定的約束，覆議前置的設定主體能繼續保持依法自律，對覆議前置行政行為的設定能跳出主管部門框架，按“行政行為類型＋屬性”設定覆議前置並允許由法律排除或由法院作限制性解釋，則不必擔心法律、行政法規濫設覆議前置，覆議前置不會無限制擴張。

Prepositive reconsideration belongs to the administrative litigation system and should be subject to the constraints of the Administrative Procedure Law. The Administrative Procedure Law stipulates the permissibility, setting power, and scope of prepositive reconsideration, which are currently challenged by the Administrative Reconsideration Law. Up to now, there are total 74 laws and administrative regulations in China which set prepositive reconsideration, generally following the rules of the Administrative Procedure Law and actively responding to its guidance. Local regulations of provincial level generally prefer to set prepositive reconsideration. The set of prepositive reconsideration by administrative rules violates the principle of rule of law. There were 65 types of administrative disputes which applied prepositive reconsideration according to laws and administrative regulations, with the standard of ''administrative authority＋type of administrative action''. Currently, the Administrative Reconsideration Law has developed the setting standard of prepositive reconsideration into ''type of administrative action＋attribute'', which beyonds the framework of administrative authority, but it does not constitute a typed standard or restriction on the set of prepositive reconsideration by laws and administrative regulations. If the constraints of the Administrative Procedure Law on the set of prepositive reconsideration could persist, the subjects that set prepositive reconsideration could continue to exercise self－discipline according to law, the set of prepositive reconsideration could go beyond the framework of administrative authority, and the exclusive provisions of law and the court's restrictive interpretation could be sufficiently applied to the set of prepositive reconsideration according to the standard of ''type of administrative action+ attribute'', there is no need to worry about the abuse of setting prepositive reconsideration by laws and administrative regulations, and prepositive reconsideration will not expand without limit.