Supreme court case: "Nonfeasance of the mechanism that reconsider " adjudicate with answer
[juridical argument]
Administration is reconsidered is the administrative action that depends on application. On one hand, without the applicant's application, administration is reconsidered won't happen; On the other hand, not be any application inevitable generation is accepted with examined legal effect. The administrative mechanism that reconsider ought to reconsider application to administration whether regulation of be good law undertakes checkup, the application that lawful to notting agree with law provides makes the decision that does not grant to accept. " administration reconsiders a law " of the seventeenth the first section provision is pair of administration application that reconsider accept with examine. Although this the 2nd section provision: "Outside provision of the section before dividing, it is namely since the day that the orgnaization that administration reconsiders application to reconsider mechanism to be in charge of legal system working from administration gets accept " , but the premise of this regulation, it is the administrative mechanism that reconsider really according to the first regulation, to administration the application that reconsider undertook examine and be handlinged. Below the case that in administration confrontation of the mechanism that reconsider is checked and handles inactive nonfeasance, do not mean administration to reconsider application nature regulation of be good law, regard as had accepted. " administrative procedural law " the 26th the 3rd section provision: "Sue nonfeasance of the mechanism that reconsider, the mechanism that reconsider is the accused. " what here says " nonfeasance of the mechanism that reconsider " , after including to accept already, exceed the time limit does not make the decision that reconsider, also include not to grant to accept to reconsidering application; Include the active nonfeasance that written decision does not grant to accept already, also include to be the inactive nonfeasance of punish to whether accepting idle. But, exceed " administration reconsiders a law " of the seventeenth the first section provision " inside 5 days " examine deadline, exceed even " administration reconsiders a law " thirtieth of a the first section provision " inside 60 days " administration reconsiders deadline, administration reconsiders mechanism to still reconsider application idle to be punish to whether accepting administration, form admittedly " nonfeasance of the mechanism that reconsider " , be not inevitable delegate administration to reconsider mechanism to accept the application that reconsider already automatically however.
Basis " top people court about applicable < People's Republic of China and administrative procedural law > explain " the 91st regulation, if " the reason that accuser asks the accused to fulfil legal obligation holds water, the accused violates repudiate to perhaps do not grant to reply without warrant exceed the time limit, people court is OK according to administrative procedural law the 72nd regulation, the legal duty that adjudicates the accused to fulfill accuser to request lawfully inside proper time " , but, this return a regulation: "Still need to the accused is investigated or reduce an amount, the request that ought to adjudicate the accused is aimed at accuser makes processing afresh. " kind of this kind of judgment is called answer to adjudicate, compare at fulfilling the court decision of specific, specific legal duty, the content of this kind of mark that adjudicates means still not specific, admit kind of this kind of judgment, basically be to be based on people court the authority reducing an amount to the executive authority and the esteem that judge authority first.
[juridical copy clerk]
People's Republic of China is highest people court
Administrative ruling book
(2018) top magic art goes explain 9429
This academy thinks: The rehear reason of comprehensive review applicant, main dispute focus amasses this record in two respects, it is right " administration reconsiders a law " the administration of the seventeenth regulation reconsiders the understanding that hears an issue, 2 it is to fulfill legal duty court decision and answer court decision how to choose applicable.
One, administration reconsiders hear an issue
The origin of this case is, rehear applicant Zhang Yuanfeng be reconsidered by administration of application of municipal government of applicant red estuarine to rehear, latter did not make any answer or processing. Court of first instance thinks, "According to " administration reconsiders a law " the seventeenth regulation, after the reconsidering application that red estuarine municipal government receives Zhang Yuanfeng to wait, ought to undertake checkup, wait for Ying Yushu face to be informed clearly to whether according with the law that reconsider to set. In view of the contradictory reason that red estuarine municipal government offers not to belong to its administration to reconsider limits in front courtyard careful, should respect an executive authority judge authority first, unfavorable and direct regard as accept. " because of this according to " administrative procedural law " the 72nd regulation, instruct red estuarine municipal government to remove the 5 reconsidering application that wait to Zhang Yuanfeng in a few days to make the written decision that whether accepts in the day that adjudicates become effective. Rehear applicant puts forward in review application, "" administration reconsiders a law " the seventeenth the first section provision: ' after administration reconsiders mechanism to receive administration to reconsider application, ought to undertake checkup inside 5 days, the administration that provides to according with this law reconsiders application, the decision does not grant to accept, written tell an applicant; To according with this code to decide, but the administration that does not belong to this mechanism to accept reconsiders application, ought to inform an applicant to reconsider mechanism to put forward to concerned administration. ' the 2nd regulation: ' outside provision of the section before dividing, it is namely since the day that the orgnaization that administration reconsiders application to reconsider mechanism to be in charge of legal system working from administration gets accept. ' in this case, the administration that rehear is in to get rehear applicant by the applicant did not make the decision that does not grant to accept inside 5 days after the application material that reconsider, basis " administration reconsiders a law " the seventeenth the 2nd regulation, the administration of this case reconsiders application to had been accepted. The administration of this case reconsiders application to had been accepted..
Administration is reconsidered is the administrative action that depends on application. On one hand, without the applicant's application, administration is reconsidered won't happen; On the other hand, not be any application inevitable generation is accepted with examined legal effect. The administrative mechanism that reconsider ought to reconsider application to administration whether regulation of be good law undertakes checkup, the application that lawful to notting agree with law provides makes the decision that does not grant to accept. " administration reconsiders a law " of the seventeenth the first section provision is pair of administration application that reconsider accept with examine. Although this the 2nd section provision: "Outside provision of the section before dividing, it is namely since the day that the orgnaization that administration reconsiders application to reconsider mechanism to be in charge of legal system working from administration gets accept " , but the premise of this regulation, it is the administrative mechanism that reconsider really according to the first regulation, to administration the application that reconsider undertook examine and be handlinged. Below the case that in administration confrontation of the mechanism that reconsider is checked and handles inactive nonfeasance, do not mean administration to reconsider application nature regulation of be good law, regard as had accepted. " administrative procedural law " the 26th the 3rd section provision: "Sue nonfeasance of the mechanism that reconsider, the mechanism that reconsider is the accused. " what here says " nonfeasance of the mechanism that reconsider " , after including to accept already, exceed the time limit does not make the decision that reconsider, also include not to grant to accept to reconsidering application; Include the active nonfeasance that written decision does not grant to accept already, also include to be the inactive nonfeasance of punish to whether accepting idle. But, exceed " administration reconsiders a law " of the seventeenth the first section provision " inside 5 days " examine deadline, exceed even " administration reconsiders a law " thirtieth of a the first section provision " inside 60 days " administration reconsiders deadline, administration reconsiders mechanism to still reconsider application idle to be punish to whether accepting administration, form admittedly " nonfeasance of the mechanism that reconsider " , be not inevitable delegate administration to reconsider mechanism to accept the application that reconsider already automatically however.
2, fulfill legal duty court decision and answer court decision
" the law of administration of People's Republic of China that reconsider carries out byelaw " the 27th regulation: "Citizen, legal person is other perhaps the organization thinks the specific administration action of the executive authority encroachs his legitimate rights and interests puts forward administration to reconsider application, divide what do not accord with administration to reconsider law and the application requirement that this byelaw sets, administration reconsiders mechanism to must be accepted. " reconsider application to examine and make the decision that whether accepts inside legal time limit to the applicant's administration, also be " administration reconsiders a law " the seventeenth the first gifts the duty of the administrative mechanism that reconsider. Administration reconsiders mechanism to reconsider application in the reject a complaint inside legal time limit, no matter be,make with written form do not grant to accept a decision, still be inactive nonfeasance, the administrative applicant that reconsider has authority according to " administrative procedural law " mix the 45th times " top people court about applicable < procedural law of administration of People's Republic of China > explanation " fiftieth 6 the 2nd regulations, to people court to lodge a complaint. In the light of administration the mechanism that reconsider rejects to accept administration to reconsider application to perhaps do not grant to reply without warrant exceed the time limit, accuser can request people court to adjudicate administration reconsiders mechanism to accept its to apply for only, also can request people court to reconsider mechanism to accept in adjudicative administration while its apply for, adjudicate administration reconsiders mechanism to make the decision that reconsider along with all the others. Basis " top people court about applicable < People's Republic of China and administrative procedural law > explain " the 91st regulation, if " the reason that accuser asks the accused to fulfil legal obligation holds water, the accused violates repudiate to perhaps do not grant to reply without warrant exceed the time limit, people court is OK according to administrative procedural law the 72nd regulation, the legal duty that adjudicates the accused to fulfill accuser to request lawfully inside proper time " , but, this return a regulation: "Still need to the accused is investigated or reduce an amount, the request that ought to adjudicate the accused is aimed at accuser makes processing afresh. " kind of this kind of judgment is called answer to adjudicate, compare at fulfilling the court decision of specific, specific legal duty, the content of this kind of mark that adjudicates means still not specific, admit kind of this kind of judgment, basically be to be based on people court the authority reducing an amount to the executive authority and the esteem that judge authority first. Specific to this case, mechanism is reconsidered to whether have not accord with administration to reconsider application condition to make the case that investigates judgement fall in administration, first trial court just adjudicates administration reconsiders mechanism to decide the to rehear applicant reconsidering application inside deadline to make the written decision that whether accepts in the law, the inactive nonfeasance that reconsiders mechanism to administration already undertook supervisory, also considered jurisdictional as necessary as travel political power bounds, accord with " administrative procedural law " mix the 72nd times " top people court about applicable < People's Republic of China and administrative procedural law > explanation " the 91st regulation.
On put together, the rehear reason that wait cannot establish rehear applicant Zhang Yuanfeng, its review application is not accorded with " procedural law of administration of People's Republic of China " the case of the 91st regulation. According to " top people court about applicable < procedural law of administration of People's Republic of China > explain " the 116th the 2nd regulation, the ruling is as follows:
Reject rehear applicant Zhang Yuanfeng, Tan Wenyun, Wu Shengyi, old emperor government office, Chai Yujie, Du Shulin, Chen Qingping, Chen Xunlan, Chenxiao.
