Limits of the subject of review and scope of powers of administrative appeal body: foreign experience

Abstract

Having looked into the peculiarities of the legislative determination of the boundaries of the administrative appeal subject and of the powers of appellate administrative body within the administrative appeal procedure in foreign countries, the author summarized that in the vast majority of countries in the administrative appeal procedure the official approach is established, which includes a comprehensive and objective re-examination of facts and their legal re-assessment by an appellate administrative body with independent determination of the subject and limits of the review, not being bound by the demands and objections of the complainant (Australia, India, USA, Taiwan). At the same time, some countries are implementing restrictive approaches to regulating the opportunities of participants in disputed administrative legal relations to collect and submit evidence at the administrative appeal stage, not allowing it without good reasons (the Netherlands, the United Kingdom), and special rules for taking into account newly discovered circumstances are also in place in some countries (the United Kingdom, China). Moreover, the author highlights diverging foreign legislative solutions regarding the possibility of worsening the situation of the complainant as a result of the administrative appeal, allowing the change of the administrative decision not in favor of the complainant, on condition that they were given the opportunity to submit explanations and evidence regarding the circumstances that may be the basis of an unfavorable decision (India, Germany, Taiwan). In addition, it is noted that foreign experience in this area offers many good approaches to determining the fate of a complaint under some special circumstances, in particular, in the case of the impossibility of a appellate administrative body to make a new decision and establish the rights and duties of the participants in the relevant administrative-legal relations, in particular, if such a change in circumstances that the whole case needs to be reviewed, if the appellate administrative body cannot independently obtain evidence or act in interdepartmental interaction, or in any other compelling circumstances (United Kingdom).