On China's Administrative Litigation Mediation System

In our country, mediation has a long history and profound social foundation, which has long been regarded as a major means of dispute settlement in civil proceedings and formed a complete system, but the mediation in the administrative proceedings, whether in the legislative or in practice, there is a serious lack of lag . How to use the mediation system in the introduction to the administrative proceedings and enable them to play a role on their strengths , become a useful complement to the trial and the key to this article .This article is divided into five sections of in detail:Part I reviewes the mediation system has an important role in our country's history for resolving disputes ,which has a profound social infrastructure in China.In the new period, the importance of the resolution of mediation dispute is not weakened, but to some extent be strengthened; then analyzed a variety of reasons, China has not established the system of administrative litigation mediation, but mediation administrative proceedings are still there; then the nature of administrative proceedings carried out mediation on administrative litigation mediation mediation and arbitration, mediation conciliation by the Commission, administrative mediation, civil mediation and reconciliation abroad administrative proceedings carried out comparative analysis of the mediation will be the nature of administrative proceedings to be fully expressed.Part II introduces mediation system first in our country the status of judicial practice, the regulation of all kinds of alienation are prevalent in practice; and then summed up the reasons for the prohibition of mediation: the power of the executive to the public is not dispositive, the public interest can not be sold , administrative tasks have been trial proceedings the legal status of the two sides of the inequality; analysis of mediation is in line with traditional Chinese values and culture; and then sum up the reasons for mediation should be introduced: the pressure from the government, the parties have the right disposition, the maintenance of the needs of the public interest, from both sides of the equal status of litigation and legal system; the last of Germany, France, the United States and Taiwan, the system of mediation or conciliation proceedings were introduced to one of the ingredients for our country and we should learn from reasonable.Part III is about the system of administrative litigation in general theory of mediation, the first is the principle of mediation into the legal principle of voluntary principles and voluntary principle, which is to protect the principle of legality; followed by a summary of the scope of mediation, applicable laws and regulations in the wrong cases, the executive authorities refuse to perform or delaying the fulfillment of its duties, to enter the proceedings of the case is still necessary, the case of violation of legal procedures and administrative penalties in cases of significant loss of impartiality; administrative proceedings and then discusses the relationship between mediation and trial, the Chief Mediation can be used as the first trial procedures, the failure of the trial is necessary mediation procedures; finally closed mediation means mediation in general cases, civil action can be modeled on the way the book issued by the end of the mediation cases, but for some special cases, after mediation agreement between the parties, the court issued the mediation at this time can not be written, otherwise constitute a legal instrument of the law, the plaintiff may make recommendations at this time to drop the proceedings ended.Part IV analyzes the mediation system in the world's advanced countries and regions on the basis of summing up the current transfer mainly one trial separation and transfer of two pre-trial mediation mode, one mode of transfer trial mediation and hearing at the same time, the judge the duality of identity, the mediation agreement is reached, such as procedural characteristics, the analysis of trial separation transfer mode, the main proceedings the conciliation process and the separation of the investigation of the facts and evidence of adoption, the conciliation proceedings and the proceedings have a differences, mediation has its own unique procedures, with the adjusted model compared to one-trial, trial separation mode transfer more normative characteristics, according to China's national conditions and reality, one mode of trial transfer is more suited to our current the status quo. Construction of China's Administrative Litigation in the mediation model system protection, mainly from the start of mediation, the mediator selection system set up to give the court control over the mediation process and improve the discovery of several aspects of the system, such as the construction of carefully established adequate system of protection, in order to improve the transfer of one mode of trial necessary.Part V discusses the administrative proceedings the effectiveness of the conciliation agreement and relief. First, the entry into force of the time served to carry out an analysis of the way, and then come to the mediation agreement entered into force mainly to determine the relationship between the parties of the effectiveness of administrative law, the effectiveness proceedings end, the effectiveness of enforcement. Relief on the mediation agreement, mediation book is divided into pre-service and after service go back two cases of estoppel, in view of these two circumstances set up a relief corresponding manner, the main model, "Contract Law" on the relief, is divided into null and void mediation agreement and may revoke the settlement agreement.