A Study On Reconciliation Concerning The Administrative Litigaition

In our country, applying reconciliation to the field of administrative litigation is still a new attempt. Though there are no rules of reconciliation in the Administrative Litigation Law, administrative reconciliation has been extensively carried out in judicial practice and received a certain amount of legal and social effects. However, there exist non-legitimate and non-standard phenomena, which need to be given a deep summary and reflection. From the perspective of academic researches, the direction and framework for studying are basically defined. In recent proposals of Administrative Litigation Law Modification, drafted by the academic circle, also make corresponding designs for the reconciliation system. However, studies on this problem tend to be some practical or utilitarian proposals on legislation and judiciary. Problems, such as lack of empirical researches, theoretical depth and extraterritorial reference, as well as a deviant research approach on certain subject, still exist. These problems need further and detailed study.In this article, firstly, the author starts from the judicial practice of administrative litigation reconciliation, analyzes the advantages and disadvantages of the existing system, and defines the tasks and issues which need to be accomplished in the study of administrative litigation reconciliation. According to the studying logic, the author begins with the study depth, explores the legitimacy of the administrative reconciliation system from different angles in theory, and tries to raise creative views, aiming to provide theoretical foundation for the construction of administrative reconciliation system. Then, having clarified the basic categories of the concept, value and principles of the administrative reconciliation, the author makes a comprehensive and thorough study on the elements, validity and remedies of the administrative litigation reconciliation from both substantive and procedural aspects. Meanwhile, this article researches the administrative litigation reconciliation in the background of legal development process in china, pointing out that the healthy operation of the reconciliation system also depends on the improvement of macro-legal environment. Finally, on the basis of the former study, the author tries to make rules for the administrative reconciliation system.The article is divided into five chapters. The main contents are as follows:Chapter I The empirical analysis and reflection of the contemporary administrative litigation reconciliation in China. This chapter analyzes the social background of Chinese administrative reconciliation. The author analyzes that administrative litigation reconciliation grows out of the demand for dispute resolution, that logical flaws exist in the reconciliation mechanism formulated by the courts, and that it tends to be abnormal and abused in practice. This chapter then introduces that the rule of law is the only way to the development of reconciliation. Thus, the justification of reconciliation system must be proved in theory, and reconciliation pattern should also be transformed from“Withdraw Model”to“Contract Model”and an appropriate system must be built up.Chapter II The justification of reconciliation. With concerning to the justification of reconciliation, the author argues that reconciliation complies with the trend of Chinese social structure development, that it is in line with the principles of litigation economy, that it is content with the traditional Chinese social culture, that it reflects the requirements of judicial activism, that administrative power should not be non-disposable, and that it corresponds to the trend of the Administrative Litigation Reform. Analyzing these perspectives and arguments provides the justification for the existence and development, and defines the legitimate scope.Chapter III Basic areas in administrative litigation reconciliation system. This Chapter mainly defines the qualified status of the reconciliation and analyzes the nature of reconciliation, civil law principles and mediation settlement in civil litigation reconciliation. The author illustrates the values of administrative litigation reconciliation and how these values become equitable under the administrative litigation reconciliation system. The author also explains the basic principles which should be followed in constructing the system, so as to lay a foundation for designing specific rules in administrative litigation reconciliation system.Chapter IV The constitutive elements and scope of reconciliation. This chapter discusses the substantive elements which are necessary for the establishment of reconciliation, including that the party has a right to dispose of the subject, that reconciliation is not against the public interest, and that the parties should mutually compromise for the purpose of ending a dispute. Then as for the procedural requirements, it includes the elements of the parties, elements of judges, the litigation Procedure when reaching an agreement, the form of settlement and reconciliation process. This chapter discusses the scope of the reconciliation applied at home and aboard, and points out the method and carrier for defining the scope of the reconciliation.Chapter V The effect and remedies in reconciliation. This chapter clarifies the effect in substantive law of reconciliation. At the same time, comparing with administrative litigation judgements, the author analyzes its effect of determining, binding, enforcing, creating on the procedure law and specific meaning. Meanwhile, starting from effect for different party, the chapter designs appropriate remedies for the parties, the third party and“new third party”.