On The Construction Of Mediation System In Administration Litigation

Mediation system is playing a vital role in dispute solving mechanism. But so far China's administrative litigation law actually strictly prohibits using it. The primary goal of this legislation is to prevent the administrative power to be freely dealt with, but people out of court avoid the legislation in the reality. This has caused the increase of the abnormal nolle prosequi in our administrative legislation; this greatly hindered the process of the rule of law in China. In common law and civil law countries, they allow settling out of court or mediation in the judicial review and administrative legislation. In china, the academic circle holds the conservative attitude regarding the mediation system in the administrative legislation, the supporter also only holds the limited suitable attitude about the administrative legislation mediation. However, it hasn't been valued widely and sufficiently up to the present, some basic problem haven't been thoroughly studied, some conceptions haven't been clearly explained, and China hasn't worked out a unified law for it, so the current administrative legislation mediation system can't meet the need of administrative legislation activities, and can't conform to the process of democracy and legal system, and is not conducive in building a harmonious society. Under this situation, it has become an important topic to conduct the research into the administrative legislation mediation system, and to establish and improve administrative legislation mediation system in building a"law-governed"country. Based on the reality of China's high rate of nolle prosequi in administrative legislation, this paper analyzes the phenomenon of settling out of court, and illustrates how to establish a system of administrative litigation mediation.There are three parts in this paper.Part one begins from the mediation definition, the analysis of mediation connotation, the principles the mediation follows, and based on this, it analyzes the administrative legislation mediation's definition and its nature, which focuses on an analysis of administrative litigation mediation is not the principle of administrative legislation, but only the handling of a dispute. Based On this, it demonstrates the practical significance of administrative litigation mediation system, especially for the construction of a harmonious society.Part two analyzes the feasibility of establishing an administrative litigation mediation system; there are three sections in this part. In sections I, The article begins from the present situation of china's administrative litigation, chiefly analyzing the high rates of reality of the nolle prosequi. And it analyses the contradiction between the administrative litigation mediation and judges'mobilization of settling out of court, and the negative impact on China's legal system, and elaborates the mediation system from the constitutional government perspective to the administrative litigation practical significance. On this basis, the paper analyses the relationship between the administrative litigation mediation and the dealing with public power and eventually come to the conclusion they are not contradictory. In section II, the paper begins from the four perspectives of which the system to make up for shortcomings, actual needs, cost considerations, and the advantages of administrative litigation mediation to demonstrate the need for establishing an administrative litigation mediation system. Through the establishment of the system of administrative litigation mediation, we could change the current situation about abnormal nolle prosequi of the lack of procedural regulation and provide theoretical support for the practice; The establishment of the system of administrative litigation mediation also reflects the development of administrative litigation system with the administrative concept for its own good to meet the real needs; The mediation system also saves the economic cost, the time cost, the social cost and the spiritual cost for the administrative litigation litigant, reduces course which the dispute solves, reduces the litigant to dispute tiredly, restores originally the harmonious social relations. Has solved the dispute, and promoted to be stable, constructed the harmonious society with our country to need to adapt; The mediation also can provide the procedure option for the administrative letigation private party, the maximum guarantee of justice and achieving judicial efficiency, reduce hostility, the end of the proceedings completely. Section III is the analysis of the possibility of administrative litigation mediation . The paper first carries on the theoretical demonstration of the administrative litigation mediation by no means executive power free punishment to become.Due to the existence of administrative discretion, administrative and law enforcement bodies have to change its administrative process, of course, it can change in the administrative proceedings, and changes in administrative proceedings can be subject to judicial review, but also to ensure its legitimacy. The theory "public power should not penalize" exclusion administrative litigation mediation , The action is tantamount to the executive powers to abandon their duties, flexibility to the executive branch of law enforcement with the complete opposite, administrative and law enforcement activities of the one-sided complex, mechanical knowledge. The administrative organ gives up, change the power outside the legal procedure the behavior massive existences, sufficiently explained the prohibition mediation rests on "the power cannot be punished" theory frail. Then the article analysis the traditional culture foundation of the administrative litigation mediation, Proposed through constructs the administrative litigation mediation system to change the negative influence of "people does not want the lawsuit" , Thus raising public awareness of the legal consciousness, shaping people's belief in the legal. The development of ADR non-litigate issue resolve mechanism offers new implications for solving administrative litigation disputes. The introduction of administrative litigation mediation system can also provides new methods for solving administrative litigation disputes. The paper also makes an analysis about the possibility of administrative litigation mediation system from the perspective of"game theory".The third part illustrates the structure of administrative litigation mediation system in China. The first chapter is about the application scope of administrative litigation mediation system, such as cases related to administrative free judgment power, administrative judgment, administrative contracts, administrative collection, non-fulfillment of legal responsibility, and administrative compensation. The specific administrative actions based on free judgment power which are illegal or unreasonable belong to the application scope of mediation. The second chapter analyzes the model choice of administrative litigation system, and proposes the establish"mediation before adjudgement, separation between mediation and adjugement". The third chapter studies the issue of procedure and regulations of administrative litigation mediation, and the author holds the opinion that principle of complying with the law is the fundamental principle of administrative litigation mediation, and mediation is only used in the first adjudgement procedure, and mediation book has the power of coercive implementation. The fourth chapter illustrates the establishment relevant system of administrative litigation mediation, and the author thinks that it is necessary to establish the"finding out the reasons for non-presence of plaintiff"procedure in administrative litigation absence judgment system.