The Research On Administrative Litigation Mediation

The 50th rule in the current "Administrative Procedure Law" specifies the fact that there should not be any intercession other than administrative compensation in administrative procedure activities in the form of prohibition. As of today, there are a large number of cases finished by making the accuser withdraw in an intercession way in reality. Such behaviors not only result in high withdrawal rate and low filing rate of administrative cases, but also weaken the authority of administration. There is some conflict between the law rule regarding intercession prohibition and the behaviors in practice at present in China. Furthermore, the conflict tends to grow. There hasn't been an academic agreement on introducing intercession system in administrative procedure activities. Based on the current situation in China, most scholars agree to introduce intercession system.The supporting scholars haven't gotten the key point of administrative procedure intercession theory. They haven't dug into the theory basis of administrative procedure intercession, either. This paper analyzed the necessity of introducing intercession system in administrative procedure using various methodologies, such as legal research, law and economics, sociology, etc, in order to find the theory support of administrative procedure intercession.First of all, civil rights are the basis of all rights in terms of the Constitution of China. Administration should exercise administrative power based on the point of serving citizens. When counterpart conflicts with administration, administration should take the initiative of improving citizen service and negotiating with counterpart. Secondly, from foreign experience and comparison of related systems,we believe that the mediation system of administrative litigation in China could also be applied. Public and private rights have been combined thanks to the widespread use of plea bargaining in other countries. There are a number of examples showing it is feasible to introduce intercession system in administrative procedure, such as "Mediator system" in France, "Administrative action settlement system" in Germany and Taiwan, etc. Thirdly, it needs to apply multiple updated conflict resolving modes in terms of the Administrative Procedure Law. As one of the conflict resolving achievements, administrative intercession system is supposed to be applied to resolve conflicts. It is the international trend and will effectively support introducing administrative procedure intercession in China. Fourthly, administrative procedure intercession can save justice resources and resolve social conflicts by investing less effort in terms law and economics. Therefore, it needs to set up an administrative procedure intercession system in China based on the practical situation. In summary, the opinion against administrative procedure intercession based on "Public authority is not transferable" doesn't make sense. It is not only feasible but also necessary to resolve administrative conflicts in an intercession way.For all the above reasons, this paper believed that intercession would be one of the excellent conflict resolving achievements to counterpart, administrative authorities and people's court based on the contradiction between law and reality. We should also realize the importance of "Rule of law" and legitimizing intercession in reality by updating related rules in the Administrative Procedure Law accordingly. It's also important to know that administrative intercession is not unlimited. Power abuse and unreasonably using this system should be avoided. Otherwise intercession will lead to power abuse due to the unoverseen power of people's court. The judge should be limited during intercession. He or she should not determine without respect to the discretion of the parties. In addition, the design of intercession process needs to be taken into account. Referencing the related process of civil mediation based on the features of administrative procedure may be a good option. But complete copy should be avoided. It is necessary to stick to the validity and voluntary during intercession. To sum up, we should take a panoramic view of the situation while building the administrative procedure intercession system. Focusing on details and never exaggerating the intercession function are the point of establishing this system.Building administration procedure intercession system will help not only realize social harmony but also resolve administrative conflicts in time and ultimately achieve the legislation of the Administrative Procedure Law.