On The Construction Of Mediation System Of Administrative Litigation In China

The mediation system not applicable in administrative litigation has always been a basic principle of administrative litigation law in China,and it has been recognized by theorists and practitioners.However,in recent years,as the concept of building a harmonious society in our country continues to spread,a new administrative procedure law was promulgated in 2015.On the basis of adhering to this principle,we have increased the scope of complaints that can be applied for mediation,and this has led to fierce discussions among scholars.They have conducted theoretical and institutional studies on whether to construct and how to structure China's administrative litigation mediation system.And from different perspectives put forward different views.Administrative litigation mediation system refers to the process of administrative litigation,in accordance with the provisions of the law,the parties to the voluntary negotiation under the auspices of the court to reach a consensus and finally resolve the administrative disputes.China's research on the administrative litigation mediation system started late.In the amendment to the Administrative Litigation Law implemented in 2015,the scope of application of mediation in administrative litigation cases was amended.This is the content of the“ Administrative Litigation Law ” in 1989 after it was promulgated.The first modification.Article 60 of the new "Administrative Procedure Law" stipulates: "If the people's court hears an administrative case,mediation is not applicable.However,administrative compensation,compensation,and cases in which administrative agencies exercise discretionary powers as prescribed by laws and regulations may be mediated." Visible,Compared with the administrative litigation law enacted in 1989,the new law broadens the scope of application of mediation.On November 13,2017,the Supreme People's Court passed and explained the relevant provisions of the Administrative Procedure Law in the Interpretation of the People's Republic of China Administrative Procedure Law that came into force on February 8,2018,but So far no administrative litigation mediation system has been established in our country.By constructing an administrative litigation mediation system in China,it is possible to quickly resolve administrative disputes,safeguard the fairness of the law and protect the legal rights and interests of the former defendants,ie,administrative subjects and administrative counterparts.At the same time,in practical judicial practice,there have been ways of resolving administrative disputes through disguised mediation,which has led to a high rate of withdrawal of plaintiffs in administrative litigation,and because there is no standardized procedure to constrain the court's actions,it will eventually lead to Adverse consequences.Although the new Administrative Procedure Law appropriately expands the scope of administrative cases that can be reconciled,it still cannot satisfy the judicial practice in our country and there are no specific regulations on the relevant procedures and relief procedures,and cannot achieve the expected legal and social effects.Therefore,the construction of an administrative litigation mediation system is a process of combining theory with practice.Based on the above reasons,this paper analyzes the related problems in the application of mediation in administrative litigation,and combines the newly revised interpretation of the administrative litigation law and judicial interpretation of the mediation system,and proposes that the country's administrative litigation mediation system will be constructed and improved in the future.Views and opinions.In addition to the introduction and conclusion,this article has set a total of four parts:The first part is the theoretical overview of the administrative litigation mediation system.Firstly,scholars study the concept of mediation in administrative litigation.From these concepts,the author analyzes the nature and characteristics of the administrative litigation mediation system;secondly,it compares the mediation system and the reconciliation system in administrative litigation,and finds out the relationship between them.Contact and differentiation;followed by elaborating on the historical evolution of the mediation system in the process of administrative litigation in China in order to explore the future direction of the construction of the administrative litigation mediation system;the author finally conducted the necessity and feasibility of constructing the administrative litigation mediation system in China.Analysis provides theoretical support for subsequent research.The second part analyzes the existing deficiencies and causes of the existing administrative litigation mediation system in China.The first part is to separately explain the shortcomings that exist,including the following categories: incomplete legislation,narrow scope of application,lack of procedures,and lack of effective relief mechanisms.Then analyze the causes of these problems in order to be able to The construction of the mediation system proposes targeted and specific solutions.The third part is the comparative study and enlightenment of domestic and foreign administrative litigation mediation(reconciliation)system.In this part,through comparative research methods,the United States,Germany,and Japan have analyzed and studied the administrative litigation mediation(reconciliation)system and legislative contents,and finally extracted from them the important experience that can be adapted to our country's judicial practice.The establishment of the system provides a reference,and at the end,it explains the inspiration from the good experience drawn from it.The fourth part is about constructing and perfecting the administrative litigation mediation system of our country.Through the analysis of the inadequacy of the mediation system in the previous article,this part corresponds to the relevant suggestions and countermeasures,which mainly include several basic principles that should be followed when applying mediation.The range of cases that the mediation of administrative litigation may and may not apply,and the procedural issues involved in the mediation process(including the initiation of litigation mediation,the time limit,number and location of mediation,and the method of mediation,etc.),the effectiveness of mediation,and remedies,etc.problem.