The Building Of The Rules Of The Mediation In Administrative Litigation

Being centered on setting up specified rules for administrative suit mediation, the author makes detailed discussion on the necessity and significance of setting up such rules, defining relevant concepts during the process of setting up such rules, and setting up specific rules.Firstly, the author makes discussion on the necessity of setting up mediation rules from both theoretical and practical aspects. Theoretically speaking, the principle that public power cannot be disposed emphasized that the administrative powers granted by laws cannot be waived, cannot be used as compromising deal which harms social public interests and etc. However, the exercise of discretionary power of administrative organs, entity authority such as annulling, altering, or redoing administrative act which violates laws or is obviously unfair will not be forfeited because of the litigation proceedings being started. The ubiquity and redefinition of discretionary power, the change of theories of administrative law to administrative consensus, the conception that the litigation positions of parties are equal being deepen, become the theoretical basis of mediation system. In practice, specific rules for mediation system are needed to be set up in order to regulate mediation act due to fact that the types and quantities of administrative cases are increasing, existing coordination and reconciliation mechanism is groundlessness, and new version of procedure law contain new rules for mediation system.Secondly, the author organized certain systems in relation to mediation,including 1. the difference between mediation in administrative procedure and mediation in civil procedure. Because of the difference of objective, purpose and mission between administrative procedure and civil procedure, as well as gradual requirements of administrative procedure in practice, being different from civil procedure, mediation rules for administrative procedure shall be detailed, and cannot applied to civil procedure generally. 2. As for administrative reconsideration, administrative procedure is connected, and the reasonableness review of discretionary power is relatively loose. 3. The connection between withdrawing the suits and mediation is cut off, the selection between withdrawing the suits and mediation as well as its application are determined.Thirdly, during the setting up of mediation rules for administrative procedures,emphasis are put on the definition and review standard of discretionary power. 1. The discretionary power shall not be understood broadly, defining discretionary power as act or omission, and the method, range, time and etc. Administrative act or omission,abuse of powers, obviously unfair and slightly flaw in reasonableness can be mediated.Other illegal acts cannot be mediated even though there is factual discretion. 2.During setting up specific rules, considering costs and practice, integrating mediation and trial has been selected, and due to the particularity of administrative power, when mediating, emphasis are put on the review on the admission of application for mediation and review on the content of mediation agreements, focusing on whether it can be defined as abuse of powers or obviously unfair, focusing on whether the content of mediation agreement violates national interests, public interests, and lawful interests of others. 3. Define the range of mediation as(1) abuse of powers;(2)obviously unfair;(3) administrative act involves erroneous determination or recognition of the amount of money;(4) other cases where administrative organs exercise their discriminatory power.As for administrative mediation system, according to clues contained in theories and existing articles, on the principle of forbidden, the author sets up rules with cautious attitude. During the preliminary stage of applying mediation rules ormediation act, rules are still in the process of self-improvement and correcting errors constantly. Thus, continuous accumulation of practices and continuous improvement of theories are still in demand.