A Study On The Conciliation System For Administrative Litigation

Article 50 in the Code of Criminal Procedure of PRC: Conciliation is not suitable for the trial of administrative case in People court. In order to avoid this regulation, the court make the administrative organ and the accuser negotiate with each other, or make the defendant change its original administrative behavior and the accuser withdraws the action so the court can settle the lawsuit. This is called coordination by the court, which results in the increasing of the rate of dropping lawsuit in Chinese administrative litigation and remains in a high point. The coordination cost the court a lot of time and energy every year.Administrative judicature, the role conciliation played in civil trial and the regulation that the conciliation can be applied to the administrative compensation lawsuit case in the Code of Criminal Procedure as well as the improper political achievement of local government lead to the high rate of dropping the lawsuit. Although conciliation is removed in the Code of Criminal Procedure, out of court reconcilement has played the role of conciliation in practice. Lack of the regulation of law, the administrative lawsuit conciliation is casual. It is contradictory for the Code of Criminal Procedure to state that the administrative compensation lawsuit can be conciliated while administrative lawsuit cannot. Violating the supremacy of law and procedure stable principle, the conciliation in practice increases the litigation and judicial cost, limits the judges'subjective initiative and injures the public credibility of the administration.Actually, the conciliation can play a positive role in the construction of a harmonious society, enhancing the administrative efficiency, raising the court's work efficiency and lowering the judicial cost, which can realize the lawsuit economy and settle administrative disputes.Conciliation cannot be applied to administrative lawsuits for three reasons: the public power cannot be disposed; it is against the task of administrative trial; the administrative counterpart cannot be protected. However, No disposition to public power is more to say no casual disposition to public power. All administrative behaviors need negotiation and communication between the counterpart and the administration. In a sense, conciliation for administrative lawsuit protects the counterpart's legal rights rather than evades legal trials. From Article 1 in Code of Criminal Procedure, solving the dispute is the aim of right relief and nomocracy. The conciliation of administrative lawsuit case shows the judicial ideas of reducing the legitimacy supervision and strengthening the function of settling disputes.The equality of the two parties involved in the lawsuit shows the fairness of the reconciliation or conciliation, which is the case in Chinese administrative lawsuit, and which is also the basis and necessary requirement for the application of disposition principle. Article 51 in Code of Criminal Procedure ensures the behavior autonomy of the administration in the procedure of administrative lawsuit. It not only grants the administration's litigation in administrative lawsuit, but also grants disposition rights, which provides the precondition to administrative case conciliation. The two parties involved in administrative lawsuit censor the conciliation agreement of the rights and obligations in a certain administrative behavior. The limited changing principle of the Code of Criminal Procedure makes conciliation possible. Conciliation of the two parties in the guidance of the court protects the legal rights of the civilian's, juridical person and other organization as well as settles administrative lawsuit cases on time, which realizes the purpose of solving administrative lawsuit disputes. In the first three years of the application of the Civil Procedure Act of PRC (trial implementation) in administrative cases, some cases may be settled in conciliation which may serve as reference to the coming administration lawsuit conciliation. Some other countries and Taiwan give more detailed regulation for the conciliation of administrative lawsuit, which can serve as valuable reference to Chinese administrative lawsuit conciliation.For the administration who executes the public power is one party in administrative lawsuit, and the administrative law requires that it shall not dispose its administrative power casually, the conciliation conducted in administration lawsuit and the right that the parties involved can dispose substantive rights is different from that in civil procedure conciliation. Therefore, it is important to study the application scope of administrative procedure conciliation. Five cases can apply the conciliation—the case involved administrative discretion, administrative case caused by civil disputes, administrative behavior carried out by will, misfeasance case and misuse the law. And in three cases, conciliation cannot be conducted—the administrative behavior is legitimate; Administrative case involves abuses of authorities; cases violate the legal procedure. Administrative lawsuit conciliation is applicable to the following types of cases: administrative adjudication case, administrative contract case, administrative collection case, administrative supply case and administrative compensation case.Because of the particularity of administrative procedure, Chinese administrative procedure conciliation shall be different from civil procedure conciliation and administration compensation lawsuit conciliation. Seven principles shall be applied: voluntary principle; legal principle; clear facts and liability principle; limited conciliation principle; specified conciliation agreement; the combining of reconciliation and trial principle; protecting the public interests and the third party interest principle.For the case of conciliation-applicable, the parties involved can start up the conciliation procedure. The court may give suggestions after judging whether the administrative behavior is legal or not on the facts. The trial organization of the administrative procedure conciliation shall be the same as the administrative trial organization—the collegiate bench of the trial. The conciliation can only be conducted between the time that the trial has made judgment on the legitimate of an administrative behavior and the time the court making decision. The times of conciliation shall be limited to make the case be settled. The cases cannot be conciliated shall be put into trial soon. Meditation documents shall be made if the conciliation agreement has passed the review. The review standard can be the standard of the non-lawsuit administrative execution case. Legal binding force is granted to the documents with the signature of the parties involved, so none of them shall make revocation. Administrative procedure conciliation should be regulated as one of the method to end a case. The meditation documents should be granted the same legal force as the judgment.