Study On Administrative Litigation Reconciliation

In the judicial practice,the people's court often deals with administrative cases by ways of coordination withdrawal.Even if the newly revised Administrative Litigation Law,the sixtieth provision clarifies the reconciliation scope of the administrative litigation and coordination withdrawal is still an important way to close administrative cases.There are similar systems in Germany,Japan and other countries;Taiwan's legislation also clearly prescribes "administrative litigation reconciliation".It shows that administrative litigation does not exclude reconciliation system absolutely.The reconciliation system in administrative litigation has its legitimacy foundation.At present,the reconciliation system in administrative litigation has been widely used in Chinese judicial practice and it should be confirmed and clearly defined by legislation.The legal attribute of administrative litigation reconciliation is directly related to the choice of legal control means for administrative litigation reconciliation.The academic community has some controversy about the legal attribute.Generally speaking,there are three kinds of representative theories: "administrative action","litigation action" and "dual actions".In terms of the litigation action attribute,administrative litigation is a form of litigation contract,but in essence,it is a trial contract.Administrative litigation reconciliation is the contract between the administrative subject and the administrative counterpart.It happens in the process of administrative litigation,but not before its beginning.The contract focuses on the specific administrative dispute and its direct purpose is to achieve the effect of the procedure law.The theory of the procedure option,the administrative discretion,the function of administrative litigation,the judicial activism,the utilitarianism and the non-litigation dispute resolution procedure are the theoretical sources of administrative litigation on judicial practice and institution construction in China which construct the theoretical basis of administrative litigation reconciliation collectively.Considering the basis of the practice of administrative litigation reconciliation:Chinese Harmonious Culture is the cultural psychology.The construction of harmonious society is the political logic."Cost-income" is the economic consideration and the legal regulation is the legal basis.The purpose of empirical analysis of administrative litigation reconciliation is to find the necessity and focus of reconciliation system construction.The empirical analysis shows that even though the administrative litigation settlement has not been institutionalized,both the administrative litigation party and the people's court speak highly of it and they are glad to accept it.Around the "withdrawal" problem,there is a survey on the parties to the administrative litigation about their willingness to the reconciliation.In terms of the administrative litigation plaintiff,the easier the administrative litigation target to realize,the stronger the potential intention of the administrative litigation will be.And the malicious litigation is often difficult to get a settlement;the parties' understanding of the administrative litigation reconciliation affects whether they get settlements and withdrawal the lawsuits.The lawyer's willing to reach reconciliation is significantly stronger than the administrative litigation plaintiff,which helps to improve the rate of administrative litigation.As the defendants in the administrative litigation,administrative authorities often do not propose the administrative litigation reconciliation actively.Because once do like that,they are easy to fall into the passive situation and it is disadvantageous to solve the dispute.But it does not mean that the administrative litigation defendant does not agree or does not accept the administrative litigation reconciliation.In practice,as for the degree of acceptance of reconciliation by administrative litigation defendants,it differs in specific case,specific time and specific region.And even the knowledge about rule of law of the person in charge of the administrative authority may directly affect the process of the administrative litigation reconciliation and the implementation of the agreement.By the way of "hypothesis-verification",we know that there exists two factors related to the willing to reconciliation of the administrative authority,that is,the time node and the complexity of the case dispute;It doesn't mean a higher possibility to reach a settlement even if the person in charge has more knowledge about the rule of law;the regional differences in the development of the rule of law are not the direct factors that affect the rate of withdrawal.In the process of resolving the administrative dispute,the people's court also has some preference for "reconciliation",but in the process of using the administrative litigation reconciliation procedure,there is a tendency of "non-openness","early settlement" of administrative litigation.And the implementation of the agreement is weak.Article 60 of the Administrative Litigation Law restricts the scope of application of administrative litigation mediation as "administrative compensation,indemnity and the administrative authorities exert the discretion given by the laws and regulations." In practice,the people's court may "break through" the scope of mediation in order to promote the settlement of administrative disputes,through the "reconciliation" way to achieve the withdrawal of the partial administrative cases.It is helpful to further establishing and improving the system design of administrative litigation reconciliation by means of clarifying the Categorization of the administrative cases which are suitable for reconciling.When we construct the administrative litigation reconciliation system,we should firstly clarify the basic principles of administrative litigation reconciliation to ensure that the system structure does not deviate from the expected value.The basic principles of administrative litigation reconciliation mainly include the principle of equality and voluntariness,the principle of legitimacy and rationality,and the principle of right remedy.Equality and voluntariness principle is the basic premise,legitimacy and rationality principle is the inherent requirement and the right remedy principle is an important guarantee.Entity element and procedure mechanism are the two basic contents of administrative litigation reconciliation system.In terms of the entity element,it mainly includes the subject element,the content element and the formal element.The settlement agreement may have invalid or revocable legal effects if there are defects in the subject element,content element and formal element.During the operation process of the law,the procedure mechanism is crucial.The legitimacy of the procedure is an important guarantee of entity effectiveness.The administrative litigation mediation procedure stipulated in the newly revised Administrative Litigation Law provides a certain legal basis for the construction of the administrative litigation reconciliation procedure mechanism.However,the scope is different between the administrative litigation reconciliation and the administrative litigation mediation,and it differs from the criminal lawsuit reconciliation procedure so that the administrative litigation reconciliation procedure should be peculiar.Administrative litigation reconciliation procedure should have three core components,namely,general procedure,third-partyinvolving-in procedure and defect relief procedure.General procedure includes basic procedure and other elements procedure.The third-party-involving-in procedure requires that the third party expresses an agreement and the third party applies for a participation or the court informs them of the participation.And the defect relief procedure includes the party's application for the adjudication supervision procedure and the third party's application for a retrial procedure.There is a certain "gap" between the establishment of the system and the realization of the system.The establishment of a system does not mean the realization of its expected target.In order to realize the administrative litigation reconciliation system,we should focus on the "the implication of the law" "the way of implementation" "the hidden troubles of conspiracy” and other issues.Administrative litigation reconciliation is a kind of legal activity to resolve administrative disputes within the framework of the Constitution and the law.In the administrative litigation,the judge still needs to conduct a comprehensive review of the factual basis and legal basis of the administrative action made by the executive authorities to determine whether there is a room for reconciliation and to make a specific reconciliation strategy.The choice of mode is directly related to the Implementation effect of administrative litigation reconciliation system."Dialogue" should be regarded as the core connotation.And we should construct the "theoretical model" of the administrative litigation reconciliation mode On the basis of summarizing the types of administrative litigation reconciliation practice,establish an integration pattern led by the court,and try to implement the pre-trial reconciliation model led by the Specially-Invited mediator.In the process of implementing the administrative litigation reconciliation,we must face up to the "reconciliation-conspiracy" problem.Reconciliation is a kind of consensus of the parties to the administrative litigation,and it may also be changed into conspiracies of the various stakeholders.In a sense,"reconciliation-conspiracy" problem is just like a "time bomb".If there's no effective treatment in time,the expected value of administrative litigation reconciliation system can not be truly realized.At the same time,we should exert more efforts to regular the illegal action in the process of implementing the administrative litigation reconciliation,and establish a punishment system combining administrative responsibility and criminal responsibility so as to ensure the effective operation of the administrative litigation reconciliation system.