On The Reconciliation Of The Administrative Compulsory Act

Administrative compulsory acts include administrative compulsory measures and administrative compulsory execution. The reconciliation of the administrative compulsory act (hereafter referred to as'The Reconciliation') refers to the compromise in the proceeding of administrative compulsory execution. The Reconciliation is not applicable to the proceeding of administrative compulsory measures, The Reconciliation can only be supplementary and exceptional for the administrative compulsory execution and can never be regarded as a principle of it. The Reconciliation should be limited. Traditional administrative law denies that the administrative power can be disposed. Not to mention this theory with limited value for practice, the Reconciliation is not by itself a disposal of the administrative power and does not contravene with such characters of the administrative act as being unchangeable and executable. It is only an alternative method of execution for the purpose of the administrative act and is an exercise of the discretion of the administrative authority. Therefore the Reconciliation is in nature a kind of specific administrative act.The Reconciliation needs to follow the fundamental principles of legality, unconstraint and limitedness. It is a limited compromise based on mutual consents under the framework of law. The Reconciliation can be requested either by the counterpart or the authority, but the latter has the last word. The authority shall censor the request before making a decision. Moreover, since the Reconciliation applies between the counterpart and the authority, it should be launched before the execution is handed over to the court if it needs so.The settlement formulated in the process of the Reconciliation is only binding between the two parties and cannot be regarded as the basis for the administrative compulsory execution. As for the third party, whether a party in the administrative compulsory proceeding or other interested ones, he cannot be the subject of the Reconciliation. When he is prejudiced he can apply for hearing, or bring an administrative reconsideration or legal action.