西安石油大学学报（社会科学版）2026，Vol.35Issue(2)：111-122,12.
反思行政法规的复议前置设定权
Reflection on the Presetting Power of Administrative Regulations for Reconsideration
摘要
Abstract
The presetting power of administrative regulations for reconsideration originates from the grant of item 5,Paragraph 1,Article 23 of the Administrative Review Law.Preposition for reconsideration is regulated by the administrative litigation system in form,which has a direct impact on the parties'obtaining the substan-tive judgment power and the start of the court's substantive trial work.Therefore,it belongs to the category of ju-dicial system and is further included in the absolute reservation of law.Based on this,in principle,when there is a gap in the law,other lower law norms should not be authorized to set up the precondition for reconsidera-tion.This means that the presetting power of administrative regulations for reconsideration has legitimacy de-fects.From the perspective of the normative practice of setting the precondition for reconsideration,compared with the situation of setting the precondition for reconsideration in the existing law,the situation of setting the precondition for reconsideration in the existing administrative regulations is mostly contrary to the standard of setting the precondition for reconsideration contained in the Administrative Review Law.From the perspective of macro effect,under the current carrying capacity and substantive dispute resolution capacity of administrative reconsideration organs,although retaining the presetting right of administrative regulations for reconsideration can increase the number of reconsideration cases in form,it is not substantively helpful to realize the main channel goal of administrative reconsideration.Therefore,the presettingpower of administrative regulations for reconsideration should not be retained.关键词
行政复议/复议前置/行政法规/主渠道/实质性化解行政争议Key words
administrative reconsideration/preposition of reconsideration/administrative regulations/main channel/substantially resolve administrative disputes分类
社会科学引用本文复制引用
林梓期..反思行政法规的复议前置设定权[J].西安石油大学学报（社会科学版）,2026,35(2):111-122,12.基金项目
国家社会科学基金青年项目"行政程序瑕疵的类型化及其司法审查研究"(18CFX019)部分研究成果. （18CFX019）
