Internal administrative behavior refers to the administrative behavior made by the administrative subject in the process of internal administrative subject management, which only has legal effect on the internal administrative organization. Internal administrative behavior is a reflection of the country's own management, which is mainly adjusted by internal administrative organization norms, resulting in internal legal effect, and is not directed at external specific people. ?
Internal administrative behavior can be divided into personnel nature and work nature. ?
It is an established fact that personnel behavior disputes cannot be resolved through judicial channels. The Administrative Reconsideration Law, the Civil Servant Law and other legal provisions all restrict the way for civil servants to seek relief within the administrative system, but do not give them the right of judicial relief. ?
From its theoretical origin, the special power relationship is a kind of legal relationship arising from the administrative system, which is embodied in the fact that the administrative subject issues general orders to the counterpart in the managed position in order to realize the special administrative intention, and takes compulsory measures according to specific legal reasons, so that the counterpart can only unconditionally obey and execute, but cannot refute and disobey. ?
Civil servants and administrative organs are a special power relationship. Compared with the general rights and obligations between citizens and the state, civil servants enjoy special rights, so they must bear special obligations. ?
The internal administrative acts of the nature of work include the replies, instructions and orders from the higher administrative organs to the lower administrative organs, as well as official letters, notices, suggestions and opinions exchanged between the organs at the same level. The new and old versions of the Administrative Procedure Law and related judicial interpretations do not explicitly stipulate that no lawsuit can be brought, but are only theoretical summaries and generalizations. ?
In addition to being influenced by the above theory of special power relations, we also consider two aspects:?
First, the internal work management behavior of administrative organs mostly belongs to the restriction and adjustment of administrative power and political decision-making, which is professional and technical, and its main goal points to the interests of the state, departments and organs, and generally does not involve private interests. In order to ensure the maximum efficiency of administrative management, administrative organs should enjoy completely independent decision-making power without interference from judicial power. ?
Secondly, the original intention of establishing the administrative litigation system in China is to reflect the restriction and supervision of private rights on public power, and to safeguard the rights and interests of citizens, legal persons or other organizations and other relative people. Due to the interweaving of many factors, the internal administrative behavior of the nature of work is excluded from the scope of judicial review by default. ?
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Case: Under what circumstances can an internal administrative act be prosecuted? ?
Appellant (defendant in the original trial): Yan 'an Municipal Administration of Work Safety (hereinafter referred to as the Municipal Administration of Work Safety). ?
Appellee (plaintiff in the original trial): Yan 'an Hongsheng Construction Engineering Co., Ltd. (hereinafter referred to as Hongsheng Company). ?
The court of first instance found that Hongsheng Company signed a tower crane sales contract with Shandong Jinan Shenglong Construction Machinery Co., Ltd. after undertaking the villagers' resettlement construction project in Hedong Village, Shiyaoping Community, Zichang County, Yan 'an City, and purchased a tower crane manufactured by the company on July 14, 2004. According to the contract, the seller is not responsible for installation, the buyer finds a qualified team to install, and the seller sends technicians to guide. ?
After that, the project department verbally contracted the installation of the crane to an installation team who had been engaged in tower crane installation for a long time but did not issue the qualification certificate and employment certificate issued by the construction department, and installed the tower crane for the first time on July 16, 2007. On the 23rd of the same month, Yan 'an Special Equipment Inspection Institute inspected the tower crane and it was qualified. ?
165438+2 1 year/0/0 at 7 o'clock on October 20O7, due to the insufficient lifting height of the tower crane, during the operation of installing the fourth standard section attached to the wall, the crane frame, slewing mechanism and the boom, balance weight and tower cap of the above parts of the tower crane tilted to the rear arm and fell from a height of 33 meters, resulting in three deaths and two people. ?
On the day of the accident, the weather turned cloudy to sunny, the daily average temperature was 9.6 degrees, and the daily average wind speed was 1m/s, so the accident caused by natural factors could be ruled out. After the accident, the Municipal Safety Supervision Bureau, the Municipal Technical Supervision Bureau, the Municipal Urban and Rural Construction Bureau and the Municipal Public Security Bureau set up the "10.2 1" accident investigation team in Zichang County to investigate the accident. During the investigation, the technical team issued an accident analysis report to the investigation team on June 1 18, saying ". ?
Houhongsheng Company applied to the investigation team for judicial appraisal of the quality of tower crane products. The investigation team thought that the cause of the accident was clear and technical appraisal was not needed. Hongsheng Company then applied to Hohhot Science and Technology Consulting Service Center for judicial expertise, and Zichang County Notary Office conducted evidence preservation notarization. ?
On June 7, 2008, 65438, Hohhot Science and Technology Consulting Service Center made an appraisal conclusion: the welding quality of jack-up sleeve has obvious defects; The properties of some structural materials tested by jack-up jacket do not meet the requirements of GB/T700-2006 for Q235B. At the same time, the "10.2 1" accident investigation team in Zichang County made the "Investigation Report on the Tower Crane Collapse Accident in Zichang County"10/"site to the Yan 'an Municipal People's Government on February 5, 2007, believing that the accident was a production safety responsibility accident, and the direct reason was that the tower crane installation team did not have it. ?
On June 5438+1October 10, 2008, the Municipal Administration of Work Safety issued the Reply on the Investigation Report of Tower Crane Collapse in Zichang County (hereinafter referred to as the Reply), which was issued by the yanshi city Administration of Work Safety. 2008 16. The analysis of the accident cause, the nature of the accident and the determination of the accident responsibility in the accident investigation report were approved. ?
Houzichang County Supervision Bureau informed the appellee Hongsheng Company of the contents of the reply, and sent a copy of the reply to Hongsheng Company. Hongsheng Company later filed an administrative reconsideration with Shaanxi Provincial Administration of Work Safety: Shaanxi Provincial Administration of Work Safety made an administrative reconsideration decision on July 4, 2008, which upheld the reply and informed the applicant that he could bring a lawsuit to the people's court within 5 days from the date of receiving the reconsideration decision. Hongsheng subsequently filed a lawsuit with the court. ?
Hongsheng Company claims that the investigation report of "10.2 1" tower crane collapse accident in Zichang County lacks factual basis for the analysis of the cause of the accident, the identification of the nature of the accident and the identification of the responsibility for the accident. "Reply" issued by Yan 'an Municipal Administration of Work Safety. Yan 'an Municipal Administration of Work Safety (2008 16) agreed to the analysis of accident causes, the nature of accidents and the determination of accident responsibilities. ?
It has seriously violated the provisions of Article 27 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, and it is wrong to replace technical appraisal with technical appraisal. Based on this, it puts forward the handling opinions for Hongsheng Company and related personnel. The cause of the accident is product quality, not installation qualification. Zichang County Supervision Bureau informed Hongsheng Company to handle it according to the reply, and sent a copy of the reply to Hongsheng Company, which seriously violated the legitimate rights and interests of Hongsheng Company. ?
Hongsheng Company refused to accept this reply and applied to Shaanxi Provincial Administration of Work Safety for administrative reconsideration. Shaanxi Provincial Administration of Work Safety maintained this reply and now filed a lawsuit with the court, demanding to cancel the contents of "agreeing to accident cause analysis, accident nature identification and accident responsibility identification" in this reply. Yanchang safety supervision bureau 2008 16. ?
Yan 'an Safety Supervision Bureau argued that its reply number was. 2008 16 is an internal reply to Zichang County People's Government on behalf of Yan 'an Municipal People's Government. The responsibility, nature and cause of the accident identified in the reply only serve as the punishment basis for the follow-up punishment of the functional departments, and have not been delivered to Hongsheng Company, which has no legal effect. Reply can't be sued. ?
Although there is a sentence in the analysis report that "whether there are quality problems needs judicial expertise", Hongsheng Company also applied for judicial expertise orally, but the tower crane that was involved in the accident has the manufacturer's production certificate and passed the inspection of the special equipment inspection office. The experts of the investigation team ruled out the quality problems and thought that the accident was mainly caused by insufficient qualifications, so it was not identified. The judicial expertise in this case is not a necessary procedure, and the appellant's reply is legal and should be maintained. ?
The court of first instance held that the accident analysis report issued by the accident investigation technical team on June165438+1October 18, 2007 clearly pointed out that "whether the tower crane has quality problems needs judicial expertise". The plaintiff repeatedly requested to apply for judicial appraisal of the product quality of the tower crane. If the investigation team fails to conduct technical appraisal in accordance with the provisions of Article 27 of the Regulations on the Reporting, Investigation and Handling of Production Safety Accidents, the accident investigation team shall entrust a unit with the qualifications prescribed by the state to conduct technical appraisal. ?
When necessary, the accident investigation team can directly organize experts to carry out technical appraisal, so that the accident investigation can not accurately and comprehensively find out the reasons. The plaintiff's reasons and claims should be supported. According to Item (2) of Article 54 of the Administrative Procedure Law of the People's Republic of China, it is decided to cancel the decision of "Extension of Work Safety Bureau No.200 16" made by the defendant Municipal Work Safety Bureau on June 5438+ 10/8, 2008. And the defendant Yan' an Safety Supervision Bureau once again made a specific administrative act. 50 yuan, the legal costs of this case, shall be borne by the defendant, the Municipal Administration of Work Safety. ?
Nantong Legislative Affairs Office-Study on Externalization of Internal Administrative Behavior
Dalian Intermediate People's Court —— Under what circumstances can a lawsuit be brought against an internal administrative act?