The principle of prohibiting adverse changes originated from the criminal litigation system in Germany, and then developed rapidly in appeal systems such as civil litigation and administrative appeal, and also spread in other review systems such as administrative litigation and administrative reconsideration, so this principle has become a universal principle in the review system. China also conforms to the development trend of the world, and has established the principle of prohibiting adverse changes in criminal proceedings, administrative penalties and administrative reconsideration. However, in the actual application process, especially in the administrative reconsideration of administrative punishment, the application of the principle of prohibiting adverse changes is more worthy of discussion.
Key words ignore the principle of change; Administrative punishment; administrative reconsideration
It is a worldwide trend to apply the principle of prohibiting adverse changes in the review system. There are two meanings: the parties are not satisfied with the handling results of the original organ and submit the relevant cases to the review organ. On the one hand, the results of the review organ cannot increase the legal responsibility of the applicant for review; On the other hand, it cannot reduce the vested interests of the applicants. In other words, in principle, the review result of the review organ can not make the situation of the parties more unfavorable compared with the processing result of the original organ.
I. Relevant provisions of China on the principle of prohibiting adverse changes.
Like the development trend of the principle of prohibiting adverse changes in the world, China used the principle of prohibiting adverse changes for the first time in the second instance of criminal proceedings, that is, the so-called? No extra punishment on appeal? Principle. 1 979 July 137 of the Criminal Procedure Law of People's Republic of China (PRC), which was adopted at the Second Session of the Fifth National People's Congress, stipulates that the people's court of second instance shall not increase the defendant's punishment when trying the cases appealed by the defendant, his agents, defenders and close relatives. So as to be formally established in China? No extra punishment on appeal? The principle of. 1996 March 17, the fourth session of the eighth national people's congress passed article 190 of the criminal procedure law (amendment) of People's Republic of China (PRC), which made the same provision on the principle of no additional punishment on appeal. The Supreme People's Court 199 1 Opinions on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China (for Trial Implementation) (hereinafter referred to as the Opinions) did not give any explanation on the prohibition of adverse changes, but Article 66 of the Opinions stipulates that the people's court shall impose administrative penalties on those who do not prohibit adverse changes. According to the understanding of the connotation of this regulation, it actually implies the spirit of the principle of prohibiting adverse changes. By 1999, the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Interpretation) made it very clear. Article 55 of the Interpretation stipulates that the people's court shall not increase the punishment for the plaintiff in the trial of an administrative case unless both interested parties are plaintiffs. When trying administrative cases, the people's courts may not directly impose administrative penalties on those who have not been punished by administrative organs. The Administrative Punishment Law of the People's Republic of China adopted by 1996 established the defense principle of adverse change for the first time in the field of administrative punishment. Article 32 of the law stipulates that the parties have the right to make statements and defend themselves. The administrative organ must fully listen to the opinions of the parties and examine the facts, reasons and evidence put forward by the parties; If the facts, reasons or evidence put forward by the parties are established, the administrative organ shall adopt them. The administrative organ shall not aggravate the punishment because the parties plead. In 2007, the Regulations on the Implementation of the Administrative Reconsideration Law (hereinafter referred to as the Regulations) introduced this principle. Article 5 1 of the Regulations stipulates that the administrative reconsideration organ shall not make an administrative reconsideration decision that is more unfavorable to the applicant within the scope of the applicant's administrative reconsideration request. ? But how to apply it in practice has no reference. However, the provisions of this article on the principle of prohibiting adverse changes are abstract and have no reference significance in concrete practice.
Second, the connotation of the principle of prohibiting adverse changes in administrative reconsideration and its establishment basis.
The administrative counterpart refuses to accept the specific administrative act and applies to the administrative reconsideration organ. In the process of administrative reconsideration review, the administrative reconsideration organ cannot aggravate the punishment result of the reconsideration applicant or make him bear more obligations, nor can it reduce the benefits that the reconsideration applicant has obtained. The principle of prohibiting adverse changes in administrative reconsideration has two characteristics: first, it is only applicable to administrative counterparts, including citizens, legal persons or other organizations, who think that a specific administrative act of an administrative organ infringes on their legitimate rights and interests and apply to the reconsideration organ for reconsideration. However, if the administrative reconsideration is put forward by the victim of illegal administrative punishment, then the principle of prohibiting adverse changes is not applicable in this case. Second, the principle of prohibiting adverse changes applies to the ruling of revocation and change. The reconsideration result of the reconsideration organ is generally maintained, revoked or changed. However, compared with before reconsideration, maintenance will not put the parties in a more unfavorable position. However, cancellation and change may put the applicant for reconsideration in a more unfavorable position than before. Therefore, to establish the principle of prohibiting adverse changes in administrative reconsideration is to limit the scope to the revocation and change of reconsideration decisions.
Why should the principle of prohibiting adverse changes be established in administrative reconsideration? What is its basis? First of all, there are divergent views on whether the principle of prohibiting adverse changes should be established in administrative reconsideration: (1) Oppose the use of the principle of prohibiting adverse changes in administrative reconsideration. According to this theory, the reconsideration decision made by the reconsideration organ according to the application of the parties concerned is the authority of the reconsideration organ and should not be influenced by the facts advocated by the parties and the evidence provided. Therefore, in the process of administrative reconsideration, the reconsideration organ can make a decision that is more unfavorable to the parties concerned. (2) Support administrative reconsideration to prohibit adverse changes. According to this theory, in essence, administrative reconsideration is one of the ways of administrative relief. If the administrative reconsideration organ puts the reconsideration applicant in a more unfavorable position in the process of reconsideration, it is inconsistent with the administrative relief essence of administrative reconsideration. (3) Whether to apply the principle of prohibiting adverse changes in administrative reconsideration should be different according to the nature of the reconsideration organ. [ 1]
The author supports the principle of prohibiting adverse changes in administrative reconsideration. First of all, administrative reconsideration is not a complete supervisory function. Administrative reconsideration means that the administrative reconsideration organ examines the legality and rationality of the specific administrative act that it refuses to accept according to the application of the administrative counterpart. In the process of administrative reconsideration, the reconsideration organ shall not refuse the application of the party concerned except that it will not accept it. According to the relevant provisions of the Constitution and the Administrative Organization Law, the supervisory function between the upper and lower levels of administrative organs is different from the neutrality of administrative reconsideration organs. Secondly, the principle of prohibiting adverse changes can play a certain role in protecting the trust of the relative person. According to the Administrative Reconsideration Law, the initiation of administrative reconsideration originates from the application of the administrative counterpart. In other words, administrative reconsideration is an administrative act that should be applied. The essence of the administrative act that should be applied for is to grant certain benefits to the relative person, so the principle of prohibiting adverse changes should be applied in administrative reconsideration. Third, Article 4 1 of the Constitution: The people of China and citizens of China have the right to criticize and make suggestions to any state organ or functionary; Any state organ or state functionary has the right to lodge a complaint, accusation or report to the relevant state organ for illegal or dereliction of duty, but shall not fabricate or distort facts to make false accusations or frame up. Finally, the certainty of administrative behavior should be relatively stable, so as to ensure that the administrative subject and the administrative counterpart can fulfill their respective obligations and realize their respective rights in a stable administrative legal relationship. Not only the administrative counterpart should respect the administrative act that has been made, but also the administrative subject must respect the administrative act that has been made, and shall not arbitrarily change, revoke or abolish the specific administrative act that is bound. Iii. Administrative reconsideration in administrative punishment? Principle of prohibiting adverse changes? Application of
Refer to criminal proceedings? No extra punishment on appeal? And the general principles or practices that prohibit adverse changes in the review system, and there are also some general principles or practices that prohibit adverse changes in administrative reconsideration.
When an administrative organ imposes administrative penalties on several people who violate the law, it shall conduct a comprehensive review of the specific administrative acts of the original administrative organ in accordance with the provisions of the Administrative Reconsideration Law. After examination, it is really believed that the original ruling should be changed, which will not only aggravate the punishment of the punished person who has applied for reconsideration, but also aggravate the punishment of other punished persons who have not applied for reconsideration. In the former case, if the administrative reconsideration organ thinks that the facts of the original administrative act are clear and the evidence is true and sufficient, but the administrative punishment is really light, according to the spirit of the principle of prohibiting adverse changes, the administrative reconsideration organ shall, in principle, maintain the original administrative punishment decision, and cannot directly change the original punishment decision and aggravate the punishment for the reconsideration applicant. More importantly, if the administrative reconsideration organ cancels the original administrative punishment on the grounds of unclear facts or insufficient evidence, and orders the original administrative organ to make a new decision on administrative punishment, the original administrative organ cannot aggravate the punishment of the respondent. However, if the punishment decision of the original administrative organ seriously affects the public interest or other legitimate rights of others, then the administrative reconsideration organ should not be restricted by the principle of prohibiting adverse changes, but should cancel the original administrative punishment or make reasonable changes, which is the principle of administrative emergency. [2]
If the administrative punishment decision is a combination of several illegal acts, and if the reconsideration organ really needs to change the original punishment decision during the trial, then of course, the principle of prohibiting adverse changes should be implemented. This can be referred to in the case of combined punishment for several crimes in criminal proceedings? No extra punishment on appeal? Application of principles. But what if it is another kind of administrative punishment? According to the provisions of Article 8 of the Administrative Punishment Law, there are seven kinds of administrative punishment, such as warning. How to determine which kind of administrative punishment is lighter or heavier? In principle, the administrative reconsideration organ cannot change the original punishment decision, which makes the reconsideration applicant in a more unfavorable decision. For example, fines cannot be changed into administrative detention.
According to Article 5 1 of the Regulations, the application of the principle of prohibiting adverse changes in administrative reconsideration is limited to the applicant's request for administrative reconsideration. However, in administrative reconsideration, according to the provisions of the Administrative Reconsideration Law, it is necessary to conduct a comprehensive review of the original specific administrative act, which is not limited to the scope of the application for administrative reconsideration. The question is, what should the reconsideration organ do if it finds that the original administrative act is still illegal or improper under such circumstances? The author points out that an important reason for supporting the application of the principle of prohibiting adverse changes in administrative reconsideration lies in the relief provided by administrative reconsideration to the administrative counterpart. However, the review beyond the scope of the application for administrative reconsideration lies in the supervision function of the administrative organ. Therefore, the author agrees in principle to apply the principle of prohibiting adverse changes in this case. However, if the third party does not apply for reconsideration, the administrative reconsideration organ cannot make an unfavorable decision, and for the problems beyond the scope of the reconsideration request, the illegality or inappropriateness of the original administrative decision should be changed by other means after administrative reconsideration.
References:
[1] Wang Kai on the principle of prohibiting interest changes in administrative reconsideration [J] Journal of Yunnan Administration College (Kunming), 2009 (03): 127
[2] Hu Xiaohua, Zhang Kunshi. In China's administrative reconsideration procedures to establish the concept of prohibiting adverse changes [J]. Law Forum (Jinan), 2003 (06): 80