Study On The Mediation System Of Administrative Litigation In China

The China's new Administrative Litigation Law is the first established administrative litigation mediation system in China,which,however,only stipulates the applicable scope and application principle of administrative litigation mediation.The mediation procedure simply continues with the previous practice that refers to the relevant systems of civil lawsuits which neglects the distinction between administrative litigation and civil litigation,and contradicts the intention of the legislators when first establishing the administrative litigation mediation system.Perfecting the administrative litigation mediation system can not only solve disputes efficiently and conveniently,but also alleviate the current situation of judicial resource shortage.Therefore,under the current administrative litigation system,it is necessary to improve the administrative litigation mediation system.Based on the Administrative Litigation Law,this paper studies the administrative litigation mediation system by means of conceptual analysis and comparative research.First,starting with the concept of administrative litigation mediation,it compares the concept of administrative litigation mediation,administrative litigation conciliation and administrative reconsideration,and expounds the theoretical basis of the administrative litigation mediation system from the traditional thought of "harmony",the universal existence of discretionary power and the theory that public power can be punished according to law.Secondly,it analyzes the problems in the administrative litigation mediation system in China from two aspects: for one thing,the Administrative Procedure Law only sets out that the cases of administrative compensation and the discretion of administrative organ can be mediated,showing that the scope of application is relatively narrow,and enumerated provisions do not provide enough room for the development of administrative litigation;for another,administrative mediation procedure is applicable to the provisions of civil mediation procedure,which ignores the characteristics of administrative litigation itself.Thirdly,through comparative analysis of overseas administrative litigation mediation systems,the paper draws lessons from their successful experience.Finally,it puts forward some specific suggestions to improve our administrative litigation mediation system,including widening the scope of the application of administrative litigation mediation in our country,bringing administrativeadjudication cases,administrative contract cases and the cases of administrative organs failing to fulfill their statutory duties into the scope of administrative litigation mediation;and perfecting the mediation procedure of administrative litigation in our country by refining the starting procedure of mediation,the process of mediation and the termination procedure of mediation,based on the different legal departments of administrative litigation and civil litigation and the construction of mediation system.