Reflections On Improving The Mediation Procedure Of Administrative Litigation In Compensation For Housing

Whether the administrative litigation cases can be settled or not, is the focus of the debate among many scholars. Under the influence of the traditional public power, the relevant laws and regulations are clearly opposed to the mediation of administrative cases. However, with the continuous development of the society, the contradictions and disputes gradually become more acute and complex. Administrative organs to perform their duties, damage to the legitimate rights and interests of the administrative counterpart of things are endless. But because the administrative cases can not mediate, the referee has become the only way to end the case. The decision made by the court in a large extent can not eliminate the objection of the plaintiff to the dispute, and the lack of the relevant interpretation shows that there may be more and more potential for the disputes of the court decision. In the solution to the increasingly complex disputes in the way of diversified demand, the promotion of the administrative proceedings in the establishment of the mediation system is also growing. The Supreme People’s court and the district court are in through the coordination of reconciliation way to resolve administrative dispute case of exploration, and to develop the provisions relating to specific, in the practice of the trial of administrative cases, there are the original defendant under the impetus of the court, outside the trial procedure, negotiation solution to end litigation practices in the form of withdrawal.In May 1,2015, the newly revised "administrative procedure law" began to implement, clearly defined by the mediation of administrative litigation disputes, and finally will be included in the administrative proceedings of the legal dispute settlement. Administrative compensation is one of the types of cases that can be carried out in the case of litigation. At present, our country executes the state-owned land on the housing levy and compensation system, in the realization of the goal of public interest, by the government organization of citizens legally owned houses for the collection and compensation. When the citizens of the compensation agreement can not reach an agreement, the government will make compensation according to the law. The nature of the compensation decision is the concrete administrative act of the administrative organ, the citizen has the right to bring an administrative lawsuit to the court in accordance with the law, and the request for the revocation of the specific administrative act.Compensation decision is not the ultimate goal of the court referee, the purpose of the administrative litigation is to supervise the administrative organs to exercise their functions and powers according to law, safeguard the legitimate rights and interests of the administrative counterpart, to resolve administrative disputes. As an important and effective way to settle the administrative disputes, the court should take active mediation to resolve disputes and achieve the end of the proceedings. The administrative act which the government makes the compensation decision is the process of the administrative authority to punish the administrative authority. But through access to the author found that how to carry out administrative proceedings in the mediation process, and no specific provisions of the legal documents. Although, before the mediation of the provisions of the law, some local courts to resolve the dispute through the coordination of the settlement of administrative disputes in a specific way. However, due to the focus on reconciliation when between the parties themselves through coordination to step to reach a settlement, the formation of the settlement agreement, the court allowed withdrawal of the plaintiff in the end case. The parties shall perform the obligations according to the agreement of the parties. This is different from the effect of mediation with the end of the procedure, and there is a substantial difference between the conciliation and mediation. Therefore, the provisions of the conciliation procedure are legal gaps. In this paper, the lack of clear provisions of the administrative litigation mediation procedure, from the state-owned land expropriation and compensation in the process of housing expropriation compensation decision of administrative litigation, administrative litigation mediation in the housing levy compensation decision of administrative litigation system value, and through the relevant experience of reference, and put forward the relevant design proposals of mediation procedures.This paper is divided into three parts:The first part of the main focus on the current housing levy compensation system in the housing levy compensation under the decision of the administrative litigation mediation to establish a discussion. In order to achieve the public interest, the state is to compensate for the damage caused by the citizens’ private property. Housing levy compensation that is for the legitimate ownership of the housing by the government to levy and compensation. When the compensation agreement can not be reached, in order to protect the realization of the public interest, the government make compensation according to law. For this specific administrative act, citizens can bring an administrative lawsuit. The purpose of administrative litigation is not only by the court to make a decision, but through the litigation to achieve a complete solution to the conflict between the two sides of the dispute, in the protection of the legitimate rights and interests of citizens, while reducing the cost of justice and administration, to maintain social harmony and stability. The process of the compensation decision is the process of the administrative agency discretion, which provides the basis for the court to mediate. However, in the specific operating procedures, although the courts have carried out some exploration, but still can not be regarded as the formal mediation process, there is a lack of relevant legal documents in the administrative litigation mediation procedure.The second part is mainly about the relevant factors of the reference of the administrative litigation mediation procedure. First of all, the representative of Germany and the Taiwan area of administrative litigation settlement system is the primary choice for learning reference. Its system and practice are relatively mature. In the settlement of the proposed, the operation stage, the settlement agreement and the effectiveness of the settlement agreement, the relief and other aspects, have accumulated the relevant experience and enlightenment. At the same time, China’s administrative litigation and civil litigation are closely linked, the content of civil litigation mediation can not be ignored. In addition, in the administrative areas, the first of the Administrative Reconsideration Mediation, the relevant legislation is also considered in the administrative organs in the process of administrative reconsideration, should allow the administrative authorities and the applicant to make a positive settlement, or by the administrative authorities of the intervention, the use of mediation, to reach a settlement dispute. Therefore, these provisions can be an important reference for the design of the proceedings.The third part mainly discusses the model and design of the mediation program. Through reference to the relevant experience, and combined with the relevant cases of administrative compensation, the compensation decision of administrative litigation mediation procedure is proposed, which includes the mode and choice of mediation, the mediation process, the effect of mediation, and the mediation procedure. According to the characteristics of the administrative litigation, the author considers that the mediation mode is suitable for the separation of the conciliation mode and the adjustment mode of the first instance. In order to give full play to the positive role of mediation to resolve administrative disputes in the starting stage, the two parties and judges are entitled to the right to mediate. Both parties may apply for mediation, or if one party applies for approval by the court and the other party’s consent, the parties may enter into the conciliation proceedings; the trial judge may propose a conciliation proposal and the concrete scheme and obtain the consent of both parties, that is, the mediation procedure. Mediation in the first instance, the second trial, the retrial and enforcement before any stage can be put forward. The court in the review of the contents of the application for mediation to confirm the operation of the mediation stage. And civil litigation mediation, the mediation results should be open. The judge mediation, to give full play to the laws and regulations related to the interpretation and appealed to guide the parties reached a settlement of positive role, follow the principle of legal and rational, and strive to achieve to solve the contradiction of administrative dispute lawsuit purpose. In the end of the mediation, the mediation agreement shall be confirmed by the review of the court and shall be produced by the court. After the completion of the completion of the mediation of the book is effective, with the same effect, while the proceedings are also attributed to the end. In the mediation of the relief and supervision procedures, the parties or third people think that the contents of the mediation book damage to their own interests, can exercise the relief program. The author believes that it can be regarded as an new relief program and the program, and puts forward some suggestions.The establishment of administrative litigation mediation system will give full play to the positive role of mediation in administrative litigation to resolve contradictions and disputes, to better restrict the abuse of administrative power, improve the administrative efficiency, save judicial resources, protect the legitimate rights and interests of the administrative counterpart, and safeguard the realization of public interests.