Discretionary Lawsuit Mediation System Of Case Study

The application of mediation in discretionary cases is a highlight of the 2014 revision of the administrative procedure law.Dispute resolution is one of the functions of administrative litigation,and the revised legal provisions specifically add "settlement of administrative disputes" as the legislative purpose,and the establishment of mediation system conforms to this legislative trend.Under the political and social background of strong official culture atmosphere and structural imbalance between judicial power and executive power,mediation can effectively solve administrative disputes,fundamentally complete the case and achieve the goal that cannot be achieved by judgment.However,the construction of a new system of specific rules is not a day's work,China's administrative litigation mediation system in the implementation rules still have a large area of blank.In laws and regulations,there are only simple provisions on mediation of discretionary litigation,which only clarify the basic principles to be followed by mediation,but lack specific rules,making it difficult to implement this system.Although the judicial interpretation points out that administrative litigation originates from civil litigation and is closely related,it can be implemented by referring to relevant civil norms.However,administrative litigation has its own characteristics,and there are still many incompatibility between administrative litigation mediation and civil litigation mediation.The court not only needs to supervise whether the administrative organ's exercise of power is legal and compliant,but also needs to pay attention to the intensity of the examination of the applicable legality or rationality of the administrative act in mediation.It is an inevitable task to define the scope of mediation in discretionary cases,standardize the court's mediation mode,fill in the gaps in the system,and refine the norms.The research focus of this paper is to sort out the status quo of the system of mediation in suit of discretionary cases,point out the problems in judicial practice of mediation in discretionary cases,and at the same time,draw lessons from and absorb foreign specific practices,and put forward Suggestions to improve China's administrative litigation mediation system.Specifically speaking,the first is the administrative discretionary cases litigation mediation system comb,the current law on this aspect of the provisions are relatively brief.The second is to summarize the problems in the practice of mediable discretionary cases.The lack of norms leads to the disorder of mediation in practice,such as the lack of unified review standards and the confusion of mediation procedures.The third part is to put forward corresponding Suggestions to practical problems.The difficulty lies in how to determine thescope of mediation in administrative discretion cases and how to improve the litigation mediation system in practice.In general,the court should play a supervisory role in litigation mediation,carefully grasp the scope of the application of mediation in discretionary cases,exclude the selection of the "important award" part,and only "effect award" cases can be applied to mediation;Distinguish the boundaries between mediation and judgment,refine the "obvious improper" rules,in the mediation of the legitimacy of the review into a reasonable review,the establishment of a dualistic review standards;In terms of procedure,it is necessary to standardize the initiation procedure of mediation,make it clear that mediation can only take place in the hearing process,and gradually establish the mode of separation of mediation and examination on the basis of national conditions,so as to standardize the preparation of mediation statement.Through a series of rules refinement,make the mediation system play its due role in administrative litigation,in the premise of justice,improve the efficiency of litigation,solve administrative disputes.