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尽管《行政复议法实施条例》第40条明文规定行政复议和解制度,但是由于该规定过于原则概括,长期疏于完善配套制度装置以建构,且难以排除与上位法存在规则悖反的合理怀疑,行政复议和解面临的质疑之声不绝:如行政权不可随意处分;行政复议和解不利于公共利益保护。作为行政和解先行者,行政复议和解的正当性亟待予以证明与捍卫,否则势必影响理论与实务界正探讨的行政执法和解与行政诉讼和解,此行政和解另外两支的正当性根基。协商民主、公众参与以及恢复性行政为行政复议和解提供了理论基础,ADR(替代性纠纷解决方法),行政契约为行政复议和解提供的成功实践范例,为证成行政复议和解注射了两支“强心针”。行政复议和解的正当性和必要性,足以证明其存在的价值。
Although Article 40 of the Regulations for the Implementation of the Administrative Reconsideration Law clearly stipulates the system of administrative reconsideration and reconciliation, since this provision is too general in principle, it lags behind perfecting the system of supporting institutions for long-term construction and it is difficult to rule out the reasonable suspicion that there exists a rule contradiction with the law of higher authority, Administrative reconsideration Reconciliation is facing the voice of doubt: If the executive power is not free to punish; Reconciliation administrative reconciliation is not conducive to the protection of the public interest. As the forerunner of administrative reconciliation, the legitimacy of administrative reconsideration and reconciliation needs to be proved and defended urgently. Otherwise, it is bound to affect the reconciliation of administrative law enforcement and administrative reconciliation that theoretical and practical circles are discussing, and the justification of the other two administrative reconciliation bases. Deliberative democracy, public participation and restorative administration provide the theoretical basis for the reconciliation of administrative reconsideration. ADR (Alternative Dispute Resolution) and the successful practice paradigm provided by the administrative contract for reconciliation of administrative reconsideration have injected two “Acupuncture ”. The legitimacy and necessity of reconciliation in administrative reconsideration are sufficient to prove the value of its existence.