On the Limits of Investigation and Evidence Collection by Administrative Reconsideration Organs
Article 45 of the new"Administrative Reconsideration Law"stipulates that the reconsid-eration organ has the right to investigate and collect evidence,but it does not clarify what kind of evi-dence can be investigated and collected.According to Article 22,Paragraph 1,and Article 135,para-graph 3,of"Interpretation of the Supreme People's Court on Application of the Administrative Litiga-tion Law",the reconsideration authority may conduct supplementary investigation,collect principal ev-idence for the original administrative action and sustain the action accordingly.The essence of the recon-sideration organ's supplementary investigation and evidence collection power is to legalize the other-wise illegal original administrative action which may raise serious doubt.The principle of"administra-tion in accordance with law"demands that the reconsideration authority cannot interfere with the evi-dence collection activity with the aim of modifying the legality of the original administrative action.The"administrative integration"theory and the"substantive resolution of administrative disputes theory"ad-vocate that the reconsideration organ could comprehensively investigates and collects evidence.Howev-er,the former subverts the nature of administrative reconsideration and erroneously treats administrative reconsideration as follow-up administrative procedures,while the latter only focuses on"no new legal procedures have been initiated"but ignore the supervision and relief functions of administrative recon-sideration,thus both are not persuasive.From the perspective of the supervision and relief function of administrative reconsideration,even if it is to substantively resolve administrative disputes,the scope of investigation and evidence collection by the reconsideration organ should be limited to resolving pro-cedural issues,verification of the evidence provided by parties,proving that the original administrative action is illegal or supporting substantive claims of applicants,and matters involving public interest.
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