On The Construction Of Administrative Litigation Mediation System

Whether our country does have to establish the administrative litigation mediation system is a hot topic. To soon revise the administrative litigation law, the discussion of this question may have the practical significance. According to trail practices of administrative litigation, this paper draws on the experience of designing of civil litigation mediation system, and put forward some ideas about Chinese administrative litigation mediation system.This paper is composed of a forward, a text and an epilogue. The text includes four part contents:The first part summarizes the administrative litigation mediation system. This part introduces the meaning of mediation and other concept interrelated, and confirms the meaning of administrative litigation mediation; through comparative analyses about "mediation" and "reconciliation", from which elicits the reasons why we should construct the Chinese administrative litigation mediation system, not reconciliation system. There is some research on the administrative litigation reconciliation system of Germany, Japan and Taiwan region; it expounds quality and character of the administrative litigation mediation system.The second part examines the status of Chinese administrative litigation legislation. It stipulates definitely that mediation can't be applied in administrative litigation in our country. The legislation purpose is affected by the traditional administrative law theories. There are five reasons, such as public power can not be manipulated and public interest can not be hurt. However, in fact, there are so many "harmonies beside the case" which are of mediate quality exactly. The rate of withdrawing of suits is always high and the legislation and practice are separated seriously. The drawbacks that mediation can't be applied in administrative law have become more and more obvious.The third part analyses the necessity and feasibility about the application of mediation in Chinese administrative law. In this paper, some traditional theories have been reflected, and the crucial issue should be settled is whether public power could be manipulated. The author's viewpoint is different from the traditional theory which is supported by discretion power theory that makes a way to establish the limited system of mediation afterwards. At the same time, the paper analyses the American Plea Bargaining system from the view of demonstration, for the sake of some inspirations about mediation system should be introduced to Chinese administrative litigation law. Then it expounds feasibility of establishing administrative litigation mediation system from the view of practical need, changing of government functions, times background of harmonious society.The fourth part researches how to establish the Chinese administrative litigation mediation system. It puts forward some actual operational proceedings based on the sufficient demonstration before, which include the principle of limited application, the model of mediation separating from the lawsuit, the application range of mediation cases from two aspects: civil factor and illegal degree of administrative actions are not serious, and the design of other material proceedings and so on.