On The System Of Mediation For Administrative Litigation

No.51 of Chinese Administrative Law says that mediation is not suitable in administrative cases.According to this, the system of mediation for administrative litigation doesn't exist in our country. However, even under the authoritative provision of law, the life-force of the mediation system hasn't died in its bed . The other way round, it flourish in the field of administrative litigation in an unsystem manner. And people have different opinions on whether to establish the system of mediation for administrative litigation or not. At the time of revising the Act of Administrative Litigation , it is very important to discuss this question for both theoretics and practice. This thesis considers that establishing the system of mediation for administrative litigation in our country is not only for the need of justice efficiency, but also for the consideration of the validity of judgement to the administrative litigation in modern times. The high ratio of the withdrawal of the suit ,the problem of disobeying trail time limit and the difficulty of enforcement in the justice practice are all oppugnations to the ban on mediation in administrative litigation;in the same time, the theory of administration of service and the theory of cooperating supply the theoretic gists. It has been provided with basis of practice and theory to establish the system of mediation for administrative litigation. So it is imperative under the situation to revise the Act of Administrative Litigation.This thesis at first analyses mediation on the point of traditional law, then point out that the mediation system which uses Self- chosen Principle as its precondition has the character of a measure of private law, and the mediation in administrative litigation is a measure of private law using in public law. But public law doesn't exclude the consensus, and using mediation in administrative litigation doesn't breach the aim of partition between public law and private law. It is indeed in favor of the realization of the objective of public law. The changes of the relation between public law and private law leave room for the establishing of the system of mediation. On the other hand, seeing from the international, we can find that the mediation adding to the court in America, the system of commissioner for mediation in France and the system of reconcilement in our Taiwan area are all provide us with experience which we can use for reference; and joining in the WTO also bring forward some exterior requests to us.Thus, we must break the anxious taboo and introduce the system of mediation into the administrative litigation as soon as possible.