Research Of Administrative Reconciliation

Currently,as China is in a period of great social changes, the administrative disputes between officials and the public have grown rapidly. But the current dispute resolution mechanism, mainly with administrative litigation and administrative reconsideration, is not working very well. It’s failed to resolve administrative disputes fairly and timely, and even more difficult to achieve the expected effect. The social transformation requires innovate, and the growing administrative disputes call for a sound administrative disputes dispute settlement mechanism. As a solution for resolving disputes since ancient times, reconciliation is not only long been used to resolve civil disputes, but also frequently used to conflict between official and citizen. From the initial exclusion of national legislation, to be part of the existing laws and regulations approved by “administrative compulsory law, and implementing regulations the Administrative Review Law”, reconciliation more and more approved officially as a more effective administrative dispute resolution. Theorists change their idea from traditional theory of “executive power can not be punished, and reconciliation should be banned ”into an acceptance of administrative reconciliation, and begin to in-depth study of it, with formation of a large number of valuable research results. However, for administrative reconciliation studies theorists still in its infancy. necessity, concept, value and other macro issues to reconciliation based research, the scope of reconciliation, the establishment of research critical system conditions, specific procedures and support mechanisms also relatively shallow, has not yet formed a complete theoretical system and institutional framework. Lack of response to the practice of theoretical research has also restricted the pace of the order and the effective use and system construction of administrative reconciliation. Seeing from the practice of system operation, the performance of the administrative reconciliation has typical “three noes” features: no unified legal basis nor Clear scope nor Specific procedural rules. Fundamentally speaking, China’s administrative reconciliation is just a lack of institutional foundations of justice phenomena and specific means to resolve disputes.And look overseas, with the expansion of the modern state functions and the rise of the concept of the contract, the government public administration has change from controlling to governance and being good governance. The way of governance of Western countries changes into non-mandatory and bi-directional degree,and pays more attention to citizens’orderly participation, greater emphasis on communication between government and citizens, with cooperation and consultation. Reflected in the level of administrative dispute resolution, it is the extensive use of administrative reconciliation and its institutionalization, standardization and long-term oriented. Whether it is German which is the representative of the civil law, or the USA which is the representative of common law, as well as Taiwan area of China, are invariably through more comprehensive legislation to institutionalize administrative reconciliation. Furthermore, administrative reconciliation procedure are widely used in practice to resolve administrative disputes. It’s constantly improve the system for reconciliation and achieved good social effects.Seeing from the comparison of administrative reconciliation practice between China and Western countries, China has a long way to go. There has been a wealth of practical Exploration and experience in administrative reconciliation in China, a part of the laws and regulations have allowed or acquiesced in resolving the dispute through reconciliation between administrative organization and relative person. However, the laggard theoretical development of administrative reconciliation with imperfect legislation and institutional construction limits the functions of administrative reconciliation. but can not equitable, comprehensive protection of public interests and the legitimate rights and interests of administrative counterpart. Therefore, it’s difficult to protect the public interest and the legitimate rights and interests of administrative relative persons. Seeing from the current and future period, China will remain in the social transformation of “growing pains” with high rate of administrative disputes. So it desiderates to optimize their administrative reconciliation system, to further develop its solution functions.The need of practice asks for in-depth theory,and asks for more perfect system to provide legal guarantees. The theorists is necessary to respond to the real needs of society, basing on the construction of administrative law and functions of administrative reconciliation, learning from the best practices overseas, to provide guidance for accelerating the improvement of administrative reconciliation system. Thereby, it realizes the positive interaction of theory, practice and system to eliminate the growing various administrative disputes, and promote social harmony. To this end, the author chose the theme of the administrative reconciliation as a doctoral dissertation research, basing on in-depth and systematic study of the practice of administrative reconciliation together with abroad experience, focusing on the further deepening of the existence of the administrative reconciliation basis and applicable system range, the establishment of the conditions,procedures and other mechanisms and so on, and look forward to provide assistance for the development of the administrative reconciliation system in China.This paper consists of introduction and text components. The introduction focuses on the background of choosing theme, research methods in the study of the administrative reconciliation, the academic progress of the main limitations of our existence, the main research ideas and possible innovations of this article. Body part is divided into four chapters, and the main contents are:The first chapter is the observation and reflection of the administrative reconciliation. First of all, it takes the survey of national and local judicial data as the core, the part of the cases, the existing academic research results for the auxiliary, normative analysis of the rising background, operation status of Chinese settlement, comprehensive display of the administrative reconciliation problems. Secondly, introduces the experiences and practices of Germany and American construction of the administrative reconciliation system. Finally, it self-examines after comparison between our country and western developed countries, administrative reconciliation practice, considering that although our country administrative reconciliation originated from the idea of harmony and dispute resolution policy official, and get some of the laws and regulations of the approval, but reconciliation system compare to the western countries is long distance.The second chapter is the basic category of the administrative reconciliation. It discusses on the concept, nature, characteristics, legitimacy and functions of the administrative reconciliation, laying the theoretical foundation for the next step research. Firstly, it analyses the concept about the administrative reconciliation of theories discussion comments, abstracting from the common factors, bases on the concept of the administrative reconciliation re and defines the administrative reconciliation as, an administrative contract behavior and dispute effectively resolve disputes solution, to balance between public interests and individual interests. According to the settlement occurred in the areas of different, can be divided into reconciliation in administrative law enforcement, administrative reconsideration and the administrative litigation reconciliation. Meanwhile, it indicates the administrative reconciliation is a kind of administrative contract, with the characteristics of reciprocal nature, transparency, flexibility and limited compared with the civil reconciliation. Secondly, this paper abandons the theory of the existing achievements on the legitimacy of the research, and summarizes the main arguments against the opening of reconciliation of legitimacy, and establish a target. Furthermore,this chapter researches on tow parts to analysis. One part is thgeneralized administrative reconciliation that does not involve the right of disposition of the executive power, and the other part is narrow administrative reconciliation that does involve the right of disposition sanctions settlement.This paper argues that the previous level in order to determine reconciliation through negotiation with the fact that state law, in line with the legitimacy, and negotiations in which both parties participate effectively complement the democratic administrative processes.Disposition of executive power in the after a level is only a means.It is in compliance with the fundamental purpose and public administrative considerations that also has legitimacy.On the other hand, it answers the question of the necessity of the existence of the administrative reconciliation, namely “Why should establish administrative reconciliation system”.It deeply summarizes in substantial administrative reconciliation to resolve the dispute, and enhance the acceptability of administrative acts and acts to reduce costs, improve value effectiveness of two aspects.The third chapter is application confine of administrative reconciliation.This chapter aims to clear the specific scope of the administrative division of reconciliation and the establishment of conditions to avoid weaknesses.In this chapter,firstly it indicates the limitations and hazards of administrative reconciliation,such as lack of legal norms leading to abuse of reconciliation,reconciliation results depending on the social capital of both parties leading damage to the interests of the disadvantaged relatively and public,and the lack of the compulsory of reconciliation agreement leading resources waste.Secondly, drawing lessons from good practices of western countries and domestic theoretical and practical achievement,it defines the scope of administrative reconciliation,namely administrative disputes caused by administrative licensing and administrative affirmation involved citizenship can not compromise.Administrative compensation, administrative contracts, administrative confirmation involved in civil disputes, administrative rulings and other administrative disputes caused by the action, can be conciliated. For other dispute caused by the administrative behavior, the reconsideration organ and the court may compromise according to law.Finally, starting from the comprehensiveness of administrative reconciliation and individualization of reconciliation in administrative enforcement of law, reconsideration and litigation, it divides the elements of the establishment of the administrative reconciliation into general and special prerequisites.General requirement is the basic essentials of administrative contract, administrative reconciliation as the all types of administrative reconciliation should be subject to it.Special requirement is a special procedure law requirement of administrative reconsideration and litigation settlement.The fourth chapter is to perfect the administrative reconciliation system. This chapter from the practice of administrative reconciliation service needs and focus on the long term, with the basic principles as the soul, the legislation idea as the guide, the program design as the trunk, supporting mechanism as supporting, better administrative reconciliation system with Chinese characteristics. Firstly, it introduces Germany “Federal Administrative Procedure Act"and"the Federal Administrative Court law" for the relevant "legislative" situation overall administrative reconciliation legislation system and China’s Taiwan region, analyzes the current legislation situation of mainland China and the existing problems, put forward on the basis of unified administrative and method "," construction of different administrative areas of special settlement system, detailed operation rules legislation idea. Secondly, it distinguishes the general principles and principles of administrative reconciliation, refining the voluntary principle, the principle of equality, participation principle, principle, timely principle, limited public principle etc. six special basic principles. Thirdly, the basic principles and operation flow around the administrative reconciliation, designed the startup program(reconciliation forward),negotiation procedure(both representations in pursuit of consensus), protocol program(a settlement agreement), the relief program(on the reconciliation agreement has not been fulfilled relief) main procedure, which not only clarifies the essential procedures all types of reconciliation, but also take into account the conciliation of enforcement, reconsideration, litigation settlement such as different types of administrative reconciliation, in order to standardize the operation of administrative reconciliation. Fourthly, from the promotion of civil servants of administrative organs and the relative person’s negotiation ability, promote the administrative dispute the two sides equal legal consultations to reach an agreement, the protection of public interests and rights of the relative people as the starting point,design of lifting mechanism, civil servant ability to negotiate peace mechanism,expert assistance mechanism, civil law spirit cultivation mechanism supporting mechanism.