The first step in initiating administrative reconsideration is to solve the problem of "who do I sue", once the "respondent" is mistaken, no matter how well the evidence is prepared and how beautifully the application is written, the reconsideration organ will not accept or reject the application for reconsideration. So, how do we accurately identify the correct respondent in practice? We have summarized the following rules into four formulas:
1. Whoever signs and who is accused
Generally speaking, for the administrative act of positive action, the administrative agency will sign and seal the effective legal document served on the applicant, then in this caseWe only need to list the signatory unit in the legal document as the respondent for reconsideration. The most common examples are: the public security police station listed in the administrative penalty decision, the *** bureau signed in the administrative licensing decision, the **district** in the expropriation compensation decision, and the **town** in the public ordered to demolish illegal buildings.
However, in practice, the application of this principle requires two exceptions:
Exception 1: Who entrusts and who is accused
Administrative organs sometimes delegate their duties such as administrative punishment and administrative licensing to other administrative organs. For example, the district housing management bureau will delegate the authority to inspect property management enterprises and make rectification orders to towns and towns; The district housing management bureau will entrust the responsibility for the rectification of group rents to the urban management department.
In such circumstances, the entrusted organ can only take administrative acts in the name of the entrusting organ and within the scope of the entrusting authority in accordance with the law, so the external legal documents can only be stamped and signed by the entrusting organ, but some of the entrusted administrative organs lack legal awareness and make administrative acts in their own nameWe can still only use the entrusted administrative agency as the respondent of the administrative reconsideration.
Exception 2: Who approves, who is accused
Some multi-stage administrative acts need to be reported to the higher authorities for approval before they can be implemented. Typical examples: the resumption of idle land. The "Measures for the Disposal of Idle Land" stipulates that the decision to recover idle land must be reported to the people at the same level for approval before implementation. In accordance with Article 13 of the Regulations for the Implementation of the Administrative Reconsideration LawIf the applicant is dissatisfied with the approved administrative act, the approving organ shall be the respondentTherefore, if you are not satisfied with the decision to recover idle land, you should take the people at the same level as the respondent. This is different from the practice of identifying the defendant in administrative proceedings.
2. Who infringes and who is the defendant
In the administrative reconsideration cases handled by the author, in addition to the legal acts of signature, there are also a large number of factual acts (administrative infringement). For example, the county ** carried out compulsory demolition of illegal buildings without legal procedures; For another example, in the process of re-expropriation, some township people** themselves do not have the power of administrative coercion, and exceed their authority and force the property in the expropriated house of the counterpart without applying to the court for compulsory enforcement.
In these administrative dispute cases,As long as there is evidence to prove that the de facto act was carried out by the county ** or township **, then the factual person who carried out the factual act should be the respondent.
Therefore, when we determine the respondent of administrative reconsideration, we only need to keep in mind the above four mantras:who signs and who is accused; who entrusts and who is accused; who approves and who accuses; Who infringes, who is accused,The respondent can be accurately grasped and there will be no false accusation.
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