The Dilemma And Response Of Administrative Litigation Mediation System

At present,China is in the new normal state of economic development and the period of social transformation.Various social contradictions are becoming more vehement,especially the strong promotion of key tasks of the party and government.The resulting administrative cases have emerged in large numbers,and the grass-roots government is facing a severe test in accordance with the law.Such cases have the characteristics of group and “one by one”,and it is difficult to resolve administrative disputes only through court judgment.With the rise of modern administrative concepts such as “cooperative administration”,“payment administration” and “service administration”,the transfer of state public power to the people has accelerated,the government's mandatory power has weakened,and the proportion of non-power administrative methods has increased.The relationship between the administrative organs and the relatives also evolved from conflicts of interest,confrontation,distrust to alignment of interests,cooperation and trust.The theory that "state power cannot be dealt with" has been impacted and challenged.The theory of state power has changed from the supremacy of state power to the state power with coordination and cooperation.Therefore,in order to adapt to the new situation,the new Administrative Procedure Law has added the legislative purpose of “solving administrative disputes” and the principle of limited mediation.However,the principle and abstraction of the legal system make the administrative litigation mediation system still in the status quo of inadequate legislation,so that there are still many problems in how to resolve administrative disputes through mediation in judicial practice.Therefore,further improving the administrative litigation mediation mechanism and using mediation methods to resolve administrative disputes are receiving more and more attention from all parties.The mediation system has just started in the field of administrative litigation in China,but it has already flourished in the field of administrative litigation in other countries and regions.At the same time,the mediation system is the basic system of civil litigation.The relevant legislative framework and applicable research in the field of civil litigation in China has already entered a mature stage.This paper intends to take the administrative litigation mediation practice of courts in Wenzhou as a research sample,refer to the civil litigation mediation system,learn from the foreign administrative litigation mediation system,and combine the characteristics of China's administrative litigation,through the evaluation of the system regulations and judicial practice,find the dilemma of the administrative litigation mediation system and propose a perfect approach one by one.The research method is based on the problem.This paper studies the administrative litigation mediation system from the aspects of mediation scope,procedures,legality review,and mediation effectiveness.First of all,through the judicial practice to demonstrate the current law on the unreasonable standard of mediation scope and the scope of mediation is too conservative and analyze the causes,and propose to solve the current predicament by broadening the scope of mediation and clearly not applicable mediation.Secondly,it focuses on the structure and operational rules of the administrative litigation mediation process.Analyze and coordinate issues such as lack of norms and insufficient mediation.I analyze that cases that are withdrawn through coordination are not included in the mediation process,the lack of norms in the administrative mediation process,and the lack of mediation resources.I learn from the operation mode of the "administrative dispute mediation center" in Wenzhou courts.I suggest a transition from a mediation withdrawal and mediation dual-track system to single-track system.I also formulate a detailed mediation procedure,draft a flow chart of the administrative litigation mediation process,and further improve the supporting guarantee mechanism for administrative litigation mediation by using an intelligent mediation communication platform,a special mediator system,and an administrative agency's decision authorization and exemption mechanism.Third,I focus on the lack of legality review in the mediation process and the formalization of mediation withdrawal cases review,analyze its causes,and use the principles of voluntariness,legality,and public welfare as the guide to let the legality review run through the whole process of mediation and solve the dilemma of legality review.Finally,starting from the lack of supervision mechanism and relief system in the mediation agreement,it is recommended to establish a multi-party supervision and evaluation mechanism for administrative litigation mediation,improve the relief system of the mediation agreement,and introduce a judicial confirmation system to solve the dilemma of the effectiveness of the mediation agreement.I believe that the model similar to the "Administrative Dispute Mediation Center" has achieved initial success in Wenzhou courts.It can be extended to the whole country on this basis,and it is expected to further improve the administrative litigation mediation system.