On The Construction Of Mediation System In Administrative Litigation

According to No.50 of Chinese Administrative Litigation Law, when People's Court tries administrative cases, mediation is not suitable. However, with the process of development of China's legal system and the theory of administrative law in China, this provision be challenged by the scholar. Many scholar advocated to establish the system of mediation in the Administrative Procedure Law. At the time of Administrative Litigation Law is to be amended, there's of great meaning to discuss this problem. The purpose of this article is to discuss the reasonable basis of establishing the system of mediation in administrative litigation and the way to construct it, and to perfect the Administrative Litigation Law in our country.This article does the research in the way of theoretical and empirical analysis. Firstly, it introduces the main theories of none-mediation applicable in our administrative suits, including the doctrine of public rights should not be treated, the doctrine of violating public interests and the doctrine of encroaching on private party's rights and interests. It criticizes these three theories before and clarifies that the traditional basis that the administrative suits is not applicable with mediation is not persuasive.Secondly, based on the criticism of traditional theories, the article clarifies the theoretical basis and empirical basis of theory of mediation applicable. The theoretical basis includes: the revelation of recovery judicial process; the revelation of plea bargaining; the necessary needs of service-type administrative idea; the necessary choice of maximum of lawsuits benefit. The practical basis includes: mediation is the inevitable choice to resolve the plight of administrative litigation; the covert mediation is widespread.Thirdly, the article proposes the specific constructive way of the system of mediation in administrative litigation. The own principle of mediation in administrative litigation should include private principle, honest principle and commonweal principle. Concerned about the characteristic of every kinds of administrative cases, the article considers that cases that can be applicable with mediation in administrative litigation include cases of administrative adjudication, cases of administrative contract, cases of administrative nonfeasance and a part of cases of administrative sanctions. The design of mediation process is around the goal of how to protect the rights of private party and we should establish a perfect adjudication supervision system of mediation in administrative litigation to prevent mistakes and illegal mediation that hurt legal rights of private party.In a word, it's necessary to amend The Administrative Procedure Law and put the system of mediation in administrative litigation into law formally. Only in this way can we restrict the abuse of administrative power, and increase administrative efficiency, save judicial resources, protect the legal rights of private party.