A Study On The Justice Of Administrative Litigation Conciliation

On whether administrative litigation can be applied to conciliation, the academia has done quite abundant work, forming various doctrines which have been debated over the years with different opinions. To begin with, the thesis reviews existing interpretations about the "The Supreme People's Court provisions of some issues on the administrative litigation withdraw", and then introduces the core proposition—justice of administrative litigation conciliation. The thesis is mainly divided into two aspects, namely, academic justice and practical justice.On academic justice, the thesis provides a comprehensive literature review of existing theory research, and finds two problems with existing research, i.e., "chaotic legal concept" and "lack of self-justification". On the basis of clarified legal concept, the fundamental disagreement between whether administrative litigation can be applied to conciliation lies in that "the view that whether resolve dispute is one of the purpose of administrative litigation is different among the academia". With this, based on existing theoretical contributions, the thesis further explains the importance of "dispute resolution" as the purpose of administrative litigation, and draws a conclusion that administrative litigation conciliation is the response to the system demand of administrative litigation purpose.As one of the most important novelty of the thesis, the practical justice of administrative litigation conciliation is emphasized on. Firstly, by using sociological analyzing methods and introducing the Bourdieu's Field Territory theory, real case of administrative litigation is studied from three distinct perspectives, i.e., "official" "people" and the judges. Secondly, based on case study, the relationship between law field and political field is discriminated. After finding the differences between academic and practical administrative litigations, the thesis points out the dualistic power structure between law and political fields existing in the law field of administrative litigation in China. This structure overthrows the primary ideal assumption, made in the very beginning of the design stage, of the neutral role of the court or judges, and removes the practical significance of rules and logic based court decision procedure. In this case, it is difficult for the court to make logic decisions according to the rules only. Finally, the thesis analyzes the reality of administrative litigation, in which the judge is often caught in the middle between "official" and "people", shouldering double duties, i.e., policy implementation and dispute resolution. Under this situation, the judge, complying with the guidelines of ideology response, use responsive trial strategy, and settle down disputes between "official" and "people" neatly. The thesis then presents the concept of responsive trial strategy in China, which is to minimize interest damage of "people" with ensured self-interests of the court without being contained by administrative organs. It also analyzes that conciliation is effective to agilely resolve disputes through agreements on the basis that both parties intends are fully respected. It achieves a unified effect in both law and social fields. Furthermore, a conclusion is drawn that administrative litigation is the product of the fact that the judges take the responsive trial strategy.