Administrative Litigation Mediation Research

In the Administrative Litigation of China, the use of mediation to resolve administrative cases (except for administrative compensation proceedings) have been prohibited, because"the non-transferable public power" has been the emphasized. However, in judicial practice, the situation of covert mediation of administrative cases is not uncommon form. It has been to lead to the low rate of administrative cases registered and the high rate of administrative cases dropped and has weakened the executive and legal authority to a certain extent.Faced with this contradiction, the academic community in our country has several views about introducing the System of Conciliation into the Administrative Cases.Although that the doctrine of positive has occupied the status of the mainstream theory, but I think that the doctrine of positive has only refuted the reasons on the grounds and the reasons are mainly confined to "the doctrine of unauthorized disposal of public power is not rigorous " or "the mediation in Administrative Cases is inevitable like conciliation proceedings in the civil and criminal prosecution "and so on. I am sure that the doctrine of positive has not made further research of the own theoretical basis of administrative litigation mediation system, and there is no clear theory about the crucial question of administrative litigation mediation.Through comparative method, literature analytic method and sociology of law, this paper made an in depth discussion of introducing mediation system into Administrative Litigation in china in order to find the theory basis of that. First of all, we have investigated the extraterritorial practice of the administrative Litigation mediation system. The German system of administrative litigation settlement, the French system of the conciliation Commissioner and the reconciliation system of the Taiwan region in our country have successfully illustrated that Administrative Litigation mediation system is feasible. At the meantime, with the widespread use of plea bargaining in overseas, it also provides a successful sample of the confluent for the private rights and the public power.Second, from the standpoint of the constitution, when there is a conflict between the executive authorities and the people relative, the executive should be consciously in consultation with the people, because all the powers are derived from the civil rights and the decisions of the executive should be thought to serve the people in the exercise of executive power. Once again, from the perspective of administrative law, return of service-oriented government administration reform has become a trend in our country, with speeding up the world economy integration process and abandoning the traditional model of government. Therefore, in the event of a administrative dispute, we should not be focusing on "public authority can not be punished," At the meantime, the executive authorities should respect the administrative relative person, and listen carefully to the views of the relative administration, and deal the dispute peacefully with the spirit of "serving the people". In addition, in order to meet the complex and ever-changing social realities and to maintain the relative stability of law, legislation is always the principled. Therefore, there is a lot of room to be left for the freedom discretion of the main administration. At this spatial scale, it is sure that the main administration can get a relatively satisfactory mediation with the administrative relative person.Fourth, from the perspective of the Administrative Procedure Law, mediation system, as one of the ways to resolve the dispute can be applied to resolve the dispute among the administration as the same as the proceedings system. The diversification trend of international dispute settlement mechanism also provides strong support for the introduction of administrative proceedings mediation of our country.Fifth, "harmony" in which China has long been inherent, as well as the contemporary situation of our country, is a Sociology foundation of using a coordinated approach to settle the internal contradictions among the people.Sixth, from the Law and Economics point of view, the administrative proceedings mediation could reduce litigation costs; the parties would pay the lowest cost to maximize profits.Finally, with the combination of the actual situation, our country should set up a set of limited mediation system of administrative proceedings.To sum up, the complete rejection of the administrative proceedings mediation opinion because of "public authority inalienable" is extremely arbitrary. Using conciliation to resolve administration disputes is not only feasible but also necessary.