Research On Application Of Mediation In Administrative Litigation

Mediation has always been an important mechanism to resolve disputes in China and China has achieved a significant success in this regard. However, except for the litigation of administrative compensation, mediation has been excluded from the whole administrative litigation system all the time. With the development of modern administrative law theory and the progress of the social reform, seeking a diversified program in administrative procedure to resolve disputes has become an inevitable trend. By expounding the change of the administrative law theory and the inherent characteristics and requirements of administrative litigation, analysing the current dispute resolution system and situation of China’s administrative litigation mediation, this Article clarifies the feasibility and necessity of establishing China’s administrative litigation mediation system, and designs some improvement and development of the application of administrative litigation mediation.Chapter one sets forth the legitimacy of applying mediation in the administrative litigation. In one hand, it analyses the theoretical basis of applying mediation in administrattive litigation by interpreting the change of the modern administrative law theory, the inherent characteristics and requirements of administrative litigation and the limited disposition of administrative rights; In another hand, it analyzes the system foundation of applying mediation in administrative litigation by summarizing the current administrative dispute resolution system and litigation cases which are solved by mediation.Chapter two elaborates the current situation of mediation in China’s administrative litigation by focusing on the prohibition in legislation and the positive exploration of judicial practice. Further, this Article analyses reasons of such situation from the perspective of traditional administrative theory, the advantage of mediation in dispute resolution, the political consideration of "general mediation".Chapter three presents some views on improving the application of mediation in administrative litigation. Firstly, it proposes three basic principles of administrative mediation (including lawful, limitation, and voluntary); Secondly, it analyzes in detail the limits of mediation application, including how to balance the mediation and judgment and what is the criterion, and then limits the scope of cases which shall apply mediation from the perspective of the nature of the administrative action and discretion in judgment; Finally, it raises some basic questions of mediation procedures.