Study on the Treatment of the Problem of “Unclear Facts and Evidence” in the New Administrative Reconsideration Law

修订后的《行政复议法》对变更决定与撤销决定在“事证不清”情形下的适用规则进行了重要调整，这种制度设计在“事证不清”问题上形成了分流机制。运用好这种机制的关键在于理解变更决定和撤销决定对“事证不清”问题处理的异同。从体系解释的角度分析，变更决定中的“事实不清、证据不足”包含撤销决定中的“主要事实不清、证据不足”，而且“主要”这一限定词则对事实不清和证据不足的情形作出了全面界定。同时在主要事实不清与证据不足之间存在着密切的关联性，二者往往相互交织、互为因果。行政复议机关的调查取证权更是“事证不清”问题处理分流的关键，不应对复议机关的调查取证权进行过分限制，而是根据案件的具体情况平衡复议实效和复议效率作出相应的选择。The revised “Administrative Review Law” has made important adjustments to the applicable rules of the change decision and the cancellation decision in the case of “unclear facts and evidence”, and this system design has formed a shunt mechanism on the issue of “unclear evidence”. The key to make good use of this mechanism is to understand the difference between the change decision and the revocation decision in the treatment of the “unclear facts and evidence” problem. From the perspective of system interpretation, “unclear facts and evidence and insufficient evidence” in the change decision includes “unclear main facts and insufficient evidence” in the revocation decision, and the qualifier “main” makes a comprehensive definition of the situation of unclear facts and insufficient evidence. At the same time, there is a close correlation between the unclear main facts and insufficient evidence, and the two are often intertwined and cause and affect each other. The right of investigation and evidence collection of administrative reconsideration organs is the key to deal with the problem of “unclear facts and evidence”. The right of investigation and evidence collection of reconsideration organs should not be excessively restricted, but the corresponding choice should be made according to the specific situation of the case to balance the effectiveness of reconsideration and the efficiency of reconsideration.