The Study On The System Of Mediation In Administrative Litigation

Mediation system in our country the position as judicial precedent as the England and American countries, so which is known as China characteristic. This system is widely used in the civilian and formed standard system, but in The Administrative litigation the scope is limited, in recent years, with the increase of administrative dispute,mediation in outside litigation undertaking sorrowfully. So, introduce the mediation system into administrative litigation is an inevitable trend. This paper is divided into five parts are detailed discussion:The first part, combined with social reality, with mediation outside the way of handling administrative disputes exist, such as Si Chuan "big mediation" frequently observed on net and newspaper. It basically is launched by administrative and dealed with by themselves, the legal basis is the government rules. This approach have received very good social effect, but also should see the administrative dispute solution possible abuses. Because our administrative procedure law don’t allow mediation, Si Chuan province with mediation outside a way to resolve administrative dispute around the law, and its applicable suspected formulated according to the local government is unfavorable to court on administrative rules administrative disputes supervision. So, in the legislation will be essential to mediation system into the scope of administrative litigation.The second part, this article first discusses China’s current legislation of the relevant provisions on mediation system, i.e. not apply conciliation of administrative litigation. Then discuss the theoretical basis of the legislation of administrative litigation only review:the legitimacy, public authority shall not dispose, go against protect the administrative relative person’s rights, etc. Administrative procedure law of mediation system exclude a reasonable place, but also brought some judicial problems, such as the high administrative litigation and no lawsuit rate, and administrative dispute hard to solve completely.The third part of China is building mainly discuss the theoretical basis of the administrative litigation mediation. First is legal principle, the administrative organs and administrative relative person in legal status, but both the unequal in lawsuit but in equal legal status. Some scholars think that, in the administrative legal relation between the parties in the unequal status, mediation system applicable will damage the legitimate rights and interests, this view counterpart in theory is established, in administrative law was enacted exists many. But now the legal consciousness of citizens has greatly improved, plus the network popularization, the administrative organ of the overbearing already is not people imagination. Second is the social effect principle, a system’s purpose was to the solution of the problem, mediation system meet this goal. Currently service and cooperative spirit has become the modern administrative dominant into rodman spirit. Finally in economics, mediation system based on judicial resources, both sides can save more acceptable to the result of the conciliation, avoid the occurrence of trial, the retrial procedure.The fourth part in administrative litigation, discusses how to establish mediation system. First, the scope of administrative litigation mediation mainly includes:administrative rulings case, administrative contract case, sued administrative behavior administrative organs have discretion case and judges think can apply conciliation case. Secondly, the basic principles of the administrative litigation mediation include:voluntary principles, lawful and reasonable principle. Again, puts forward the subject is the parties to the mediation and conciliation or judge only applies to the first instance, shall not apply to. For instance trial judge, is the fact that is legal trial. Finally, administrative litigation mediation system successfully implemented lies in perfecting the judges law of the People’s Republic of China, play the judge function, encourage the judge mediation, standardizing the judge mediation, limit the judge power.The fifth part is about the execution of administrative litigation mediation agreement. On the one hand, administrative litigation mediation must prepare the conciliation statement. On the other hand, the conciliation agreement, unless the parties have evidence that mediation process existence violate voluntarily or other illegal behavior just can apply for a retrial. To withdraw the application case, the plaintiff or the defendant to change dropped the specific administrative act, the plaintiff to agree and application, the court should be in the withdraw the defendant administrative organs reality only after the administrative behavior change can be agreed to the defendant withdraw.