摘要
Traditional administrative law theory and practice do not recognize reconciliation in the administrative process.In judicial review of administrative actions,court has been reluctant to settle disputes by way of reconciliation, or does not like admitting such method even if it has to do so.The author is skeptical of traditional way of thinking and tries to analyse the issue based on relevant stipulations and academic researches in the Federal Republic of Germany.Firstly,the essay discusses the general foundation of reconciliation in judicial review of administrative actions, including uniqueness of judicial review of administrative actions as well as reconciliation in this process.The author thus claims it is possible to accommodate reconciliation in proceedings.Secondly,the essay conducts a comprehensive and detailed research in connection with nature,possibility,competence,execution,invalidity and revocation of administrative reconciliation in judicial process.Based on this analysis,the author summarizes as follows:reconciliation is both litigation act and public contract act.Except four limitations listed in the essay,there are no other reasons to exclude reconciliation from administrative process.The objective of reconciliation is for legal peace rather than creating new rights.There will be obvious conflicts with prior administrative procedure if reconciliation is not admitted.As a result,if reconciliation is admitted,it will be helpful to solve disputes among parties and promote administration according to the law and rationality in administrative process.
Traditional administrative law theory and practice do not recognize reconciliation in the administrative process.In judicial review of administrative actions,court has been reluctant to settle disputes by way of reconciliation, or does not like admitting such method even if it has to do so.The author is skeptical of traditional way of thinking and tries to analyse the issue based on relevant stipulations and academic researches in the Federal Republic of Germany.Firstly,the essay discusses the general foundation of reconciliation in judicial review of administrative actions, including uniqueness of judicial review of administrative actions as well as reconciliation in this process.The author thus claims it is possible to accommodate reconciliation in proceedings.Secondly,the essay conducts a comprehensive and detailed research in connection with nature,possibility,competence,execution,invalidity and revocation of administrative reconciliation in judicial process.Based on this analysis,the author summarizes as follows:reconciliation is both litigation act and public contract act.Except four limitations listed in the essay,there are no other reasons to exclude reconciliation from administrative process.The objective of reconciliation is for legal peace rather than creating new rights.There will be obvious conflicts with prior administrative procedure if reconciliation is not admitted.As a result,if reconciliation is admitted,it will be helpful to solve disputes among parties and promote administration according to the law and rationality in administrative process.
出处
《环球法律评论》
2001年第4期456-468,共13页
Global Law Review
