Administrative violations committed by the government for failing to fulfill its statutory duties wiTime: 2022-05-19 15:55:33 Clicks: 907
Liang reviewed the case of illegal administrative actions by the People's Government of a certain township in Chaoyang District, Beijing, for failing to fulfill its statutory duties within the statutory time limit
Chaozhengfu Zi [2021] * * *
【 Reason for recommendation 】
The informant reported a certain illegal behavior to an administrative agency with law enforcement power. After receiving the report, the administrative agency investigated the informant's illegal activities within the legally prescribed time limit and concluded that the informant had no interest in the illegal activities. Therefore, the investigation was terminated without informing the informant. As a result, the whistleblower filed an administrative reconsideration against the administrative agency for failing to fulfill its statutory duties, requesting confirmation that the administrative agency's failure to fulfill its statutory duties within the statutory period was illegal, and ordering the administrative agency to handle the reported illegal matters in accordance with the law.
After accepting the client's commission, our lawyer conducted a specific analysis of the case and concluded that the applicant for reconsideration does not have a legal interest in whether to handle their application matters. The rights and interests claimed by the applicant for reconsideration are not in the field of public law, and do not affect their rights and obligations. Moreover, they do not have the subject qualification to initiate administrative reconsideration. The final reconsideration authority basically adopted the representative opinion of our lawyer, rejected the applicant's reconsideration application, and achieved satisfactory results for the client.
[Principal] (Respondent): A township government in Chaoyang District, Beijing (hereinafter referred to as the "Respondent")
[Counterparty] (Applicant): Liang (hereinafter referred to as the "Applicant")
[Applicant's Reconsideration Request] 1. Confirm that the respondent's failure to perform their statutory duties within the statutory period is illegal; 2. Order the respondent to make a decision on handling the illegal activities of XXX Park (the reported project).
The first instance court has determined the basic facts of the case
The applicant mailed the "Application for Protecting Legitimate Rights and Interests and Fulfilling Legal Duties" to the respondent on * year * month * day, requesting the respondent to investigate and punish the illegal construction of XXX Park. After receiving the materials, the respondent will submit them to the relevant department for processing after being studied and decided by the supervisor. After investigation and understanding by relevant departments, it was determined that the applicant's application has no legal interest in the matter and does not affect the applicant's actual rights and obligations. Therefore, the respondent terminated the investigation procedure.
The applicant then submitted a review application to the review authority, requesting that the review authority confirm in accordance with the law that the respondent's failure to fulfill their statutory duties within the statutory period was illegal, and order the respondent to make a decision on the illegal behavior of XXX Park (the reported project).
[Opinion of our lawyer's representative]
1. Whether the respondent has dealt with the matters reported by the applicant does not have a legal interest relationship with the applicant. The applicant mailed the "Application for Protecting Legitimate Rights and Interests and Fulfilling Legal Duties" to the respondent on * year * month * day, requesting the respondent to investigate and punish the illegal construction of XXX Park. After receiving the materials, the respondent will submit them to the relevant department for processing after being studied and decided by the supervisor. After investigation and understanding by relevant departments, it has been determined that the applicant has no legal interest in the matter being applied for, and whether the respondent handles the matter does not affect the applicant's actual rights and obligations.
2. The applicant does not have the subject qualification to initiate this administrative reconsideration. Article 28 (2) of the Implementation Regulations of the Administrative Reconsideration Law of the People's Republic of China states: "If an administrative reconsideration application meets the following requirements, it shall be accepted: (2) The applicant has an interest in a specific administrative act." This is a statutory condition for citizens, legal persons, or other organizations applying for reconsideration to have applicant qualifications and for the reconsideration authority to accept their administrative reconsideration application. The response of the Supreme People's Court on whether a whistleblower who disagrees with the handling or inaction of an administrative agency on a reported matter has the qualifications to apply for administrative reconsideration also clearly stipulates that if a whistleblower reports a relevant illegal act in order to safeguard their legitimate rights and interests, they must be investigated and dealt with by the administrative agency. If they disagree with the handling or inaction of an administrative agency on a reported matter and apply for administrative reconsideration, they have the qualifications to apply for reconsideration. Therefore, whether the application is for the purpose of "safeguarding one's own legitimate rights and interests" is the core criterion for determining whether the informant has an "interest relationship" with the relevant administrative action. The interest relationship in administrative law generally refers only to the interest relationship in public law, and does not include the interest relationship in private law. In other words, only when the rights and interests in the field of public law are affected by administrative actions and there are parties who have suffered harm, can they have a legal interest relationship with administrative actions, form a rights and obligations relationship in administrative law, and have the subject qualification of the applicant.
Summary of the Decision of the Reconsideration Authority
1. Citizens, legal persons or other organizations applying for administrative reconsideration shall meet the statutory acceptance conditions. Article 2 of the Administrative Reconsideration Law of the People's Republic of China stipulates that citizens, legal persons, or other organizations who believe that a specific administrative act has infringed upon their legitimate rights and interests shall submit an application for reconsideration to the administrative organ. The administrative organ shall accept the application for administrative reconsideration, make an administrative reconsideration decision, and apply this Law.
2. Article 28 (2) of the Implementation Regulations of the Administrative Reconsideration Law of the People's Republic of China stipulates that the applicant for administrative reconsideration shall have an interest in the specific administrative act. The so-called interest relationship refers to the possibility of the applicant's personal legitimate rights and interests being infringed by administrative actions. On the one hand, such legitimate rights and interests should be limited to the individual applicant, rather than representing the overall public interest. On the other hand, this legitimate right mainly refers to the substantive rights and interests protected by relevant administrative laws and regulations, such as personal rights, property rights, etc. Only when the informant reports in order to protect their own legitimate rights and interests, can the administrative agency's handling or inaction potentially infringe upon their legitimate rights and interests.
3. In administrative reconsideration cases where the whistleblower requests the administrative agency to investigate and deal with the reported matter, the core criterion for determining whether the whistleblower has a vested interest in the relevant administrative action is to safeguard their own legitimate rights and interests. Based on the evidence submitted by the whistleblower, it should be judged whether to report in order to safeguard their legitimate rights and interests. The whistleblower should submit preliminary factual evidence and evidence clues of the objective existence of illegal facts, and should also submit evidence of the direct actual impact of illegal facts on the whistleblower's rights or obligations. Otherwise, they do not have the qualification to apply for administrative reconsideration.
4. In this case, the applicant believes that the reported project is suspected of having related illegal activities and requests the respondent to report it for investigation and reward. The applicant filed an administrative reconsideration application against the respondent for failing to fulfill their statutory duties on the grounds that the reported project belongs to a public green space and has public use rights. There is no interest relationship between the respondent and the applicant regarding whether they have made administrative actions or what kind of administrative actions they have taken. Therefore, the administrative reconsideration application submitted by the applicant does not meet the acceptance criteria for having an interest relationship with specific administrative actions as stipulated in Article 28 (2) of the Implementation Regulations of the Administrative Reconsideration Law of the People's Republic of China.
Review result
Reject the administrative reconsideration application submitted by the applicant Liang.