Reconsideration of the Construction of China's Administrative Litigation Mediation System

Content Summary: Administrative litigation does not apply mediation is a principle established by China's administrative procedure law. However, with the emergence of a large number of new administrative acts and the need for judicial practice of administrative litigation, the call for the establishment of an administrative litigation mediation system is growing. This paper examines and rethinks the theoretical basis of the non-application of mediation in administrative litigation, points out the necessity of establishing the mediation system of administrative litigation in China, and puts forward some suggestions on the legislative principles.

Key words:Administrative Litigation Administrative Litigation Mediation Suggestions

Overview of 1. Administrative Litigation Mediation

Connotation of (I) Administrative Litigation Mediation

Mediation refers to the activities of a third party other than the parties, based on national laws, regulations and policies, and social ethics, to channel and persuade both parties to the dispute, to urge them to understand each other, negotiate, reach an agreement voluntarily, and resolve disputes. Administrative litigation mediation is the process of administrative litigation, under the auspices of the judge, based on the voluntary consultation of both parties, mutual concessions to resolve disputes.

The general view is that the basis of mediation is based on the substantive disposition right owned by both parties as the main premise. If the parties do not have the physical disposition right, there will be no mediation between the two parties, because only when the parties give up some of their rights, or when one of the parties voluntarily gives up some of their own rights, there is the possibility of successful mediation, that is, the so-called no right to give up means no mediation.

Foreign Legislation (II) the Mediation System of Administrative Litigation

Looking at the world today, in the process of resolving administrative disputes, the vast majority of countries can advocate mediation and reconciliation.

U. S. Generally, except for special provisions of the law, any dispute can be handled through mediation, as long as the parties and the presiding administrative judge agree. Any of the parties may request a pre-trial conciliation conference, and conciliation cannot be implemented if one of the parties objects. After the administrative judge has taken up the dispute, a pre-trial planning conference is usually convened to decide whether to apply the conciliation procedure. The parties may apply for mediation at any time before the formal hearing, and the choice of the mediator and the agreement on the fees shall be decided by the parties through consultation.^[1]

Germany, Japan and other traditional civil law countries and China's Taiwan region. The theoretical and practical circles in these areas have shown unprecedented enthusiasm for the settlement of administrative disputes. According to the research of Taiwan scholar Cai Zhifang, the administrative laws of France and Germany clearly stipulate that reconciliation can be carried out to a limited extent.^[2]Article 106 of the Federal German Administrative Court Act states: "As long as the participant has the right to dispose of the subject matter of the settlement, the participant may, in order to completely or partially terminate the proceedings, make a statement in the court or before a designated or appointed judge in order to reach a settlement. A court settlement may also be concluded in writing in the court in the form of a decision recommended by the court, the presiding judge or the reporting judge."^[3]

(III) the Legislative Provisions on the Non-application of Mediation in Administrative Litigation in China

The earliest stipulation that administrative litigation shall not be mediated was issued by the Supreme People's Court in 1985. It is pointed out in the circular that examining and confirming whether the administrative penalty decision or other administrative decision made by the competent administrative organ according to its functions and powers is legal and correct is different from solving the problem of civil rights and obligations between the plaintiff and the defendant. Therefore, the people's court should not mediate, but should make a fair judgment on the basis of finding out the situation. In 1987, the Supreme People's Court once again made clear provisions on the non-application of mediation in the "Answers to Several Questions on the Specific Application of the Civil Procedure Law (Trial)" in the Trial of Economic Dispute Cases. Article 50 of my country's current "Administrative Litigation Law" clearly stipulates: "The people's court does not apply mediation when trying administrative cases."

Re-examination 2. the Inapplicability of Mediation in Administrative Litigation in China

The Main Viewpoints of (I) Administrative Litigation Not Applicable to Mediation

The non-application of mediation in administrative litigation in China is often bound and influenced by the traditional theory of administrative litigation. Among them, the negative view of administrative litigation mediation is summarized, mainly in the following aspects:

One is that the public interest (power) cannot be transferred and disposed. According to the traditional theory, the executive power is the power of the state, and the administrative organ has only the duty to exercise the power of the state, but has no right to dispose of the state power freely.^[4]Therefore, in dealing with administrative mediation, the people's court can not use mediation as a way of hearing, let alone mediation as a way of closing the case.^[5]At the same time, because the exercise of administrative power often involves public interests, many people believe that if administrative agencies are allowed to trade the powers granted by the law with their counterparts, it will inevitably mean that national and social interests will be sold, and the transfer of public power will inevitably harm. Public interest.

The second is that the decision is made by the task of the administrative trial. It is believed that the task of the people's courts in hearing administrative cases is to judge whether a specific administrative act is legal based on facts and laws. There is no intermediate state between legality and illegality, and there is no room for mediation.

Third, it stems from the unequal status of both parties in the administrative legal relationship. In the administrative legal relationship, whether in terms of resources, information and other aspects of the administrative subject and the relative is obviously in an unequal position, in the process of mediation, the administrative subject in a strong position will be able to force the relative to make unlimited concessions. It is difficult for both parties to reach an equal and voluntary mediation agreement.

Re-examination of the View of Non-application of Mediation in (II) Administrative Litigation

The view that mediation is not supported in administrative litigation cannot be said to be unreasonable, but the above-mentioned view ignores the equivalence of rights, thus failing to fully reflect the essence of the problem, and there are inconsiderate points.

First, the connotation of "public power cannot be disposed of" should be "public power cannot be disposed of arbitrarily".

Although administrative organs are not allowed to give up or transfer their functions and powers at will, the principle of administrative law that "mistakes must be corrected" enables administrative organs to change the original illegal administrative acts at any time and have the right to dispose of their powers within the scope of their discretion, which is essentially different from arbitrary punishment. In the administrative reconsideration and hearing procedure, the change of the administrative organ to the improper specific administrative act is actually the punishment of "public power". Administrative organs can change their administrative behavior in the process of administrative law enforcement, why can't they in administrative litigation! Administrative organs can change their administrative behavior in the process of administrative law enforcement, of course, they can change in administrative litigation, and change in administrative litigation can accept judicial supervision, and can ensure its legitimacy. To exclude the mediation of administrative litigation with the theory of "public power cannot be punished" is to equate the punishment of administrative organs on their functions and powers with giving up their duties, and to completely oppose the flexible law enforcement of administrative organs with administration according to law. it is a one-sided and mechanical understanding of the complexity of administrative law enforcement activities. The existence of a large number of acts of administrative organs abandoning and changing public power outside the proceedings is sufficient to illustrate the weakness of the theory of "public power cannot be disposed of" on which the prohibition of mediation is based. Instead of allowing administrative organs to punish public power outside the litigation procedure, it is better to set up a mediation system and give it judicial supervision in a justifiable way, so as to fundamentally ensure that public power is not subject to arbitrary punishment. And mediation does not mean administrative concessions and arbitrary punishment of power, on the contrary, it can be effective judicial supervision. Therefore, it is obviously pale in theory to exclude the mediation of administrative litigation by "public power cannot be disposed.

Second, the application of mediation in administrative litigation does not violate the principle of legality review.

The provisions of the Administrative Litigation Law that administrative litigation only examines the legality of specific administrative acts do not affect the application of mediation in administrative litigation. Although administrative mediation is made by the compromise between the administrative subject and the relative, the content of the mediation must not violate the law and must be reviewed by the people's court. This process is actually the people's court to review its legality. The reason why the administrative procedure law stipulates that only the legality of specific administrative acts should be reviewed is mainly to prevent excessive interference of judicial power in administrative power. The process and content of administrative mediation are strictly limited within the legal scope, which eliminates the legislative concerns of prohibiting the application of mediation in administrative litigation legislation.

Third, the administrative subject and the relative person have equal litigation status in administrative litigation. In the legal relationship of administrative entity, although the relationship between the administrative subject and the administrative counterpart is the relationship between management and management, domination and domination, but after entering the field of administrative litigation, the two sides have equal litigation status, can enjoy the right of litigation and bear the obligation of litigation equally in accordance with the law. At this time, the people's court can preside over the two parties to coordinate and reach an agreement on the administrative dispute.

3. the Necessity of Establishing China's Administrative Litigation Mediation System

(I) the need to build a "harmonious litigation model"

In 2007, the Supreme People's Court put forward the concept of "harmonious litigation mode" for the first time at the seventh national civil trial work conference. The so-called "harmonious litigation model", even if it emphasizes that under the strategic goal of our country's efforts to build a harmonious society, litigation should be transformed into a harmonious litigation model, vigorously advocate harmonious justice, and truly resolve social disputes in substance. Although the background of "harmonious litigation mode" is to realize harmonious civil litigation, it is undeniable that the establishment of administrative litigation mediation system is one of them.

(II) the need to change the administrative model

From interference in administration to payment of administration, the ways of administrative behavior in modern society are diversified, especially the emergence of a large number of non-compulsory administrative acts, such as administrative contracts and administrative guidance, which are more contractual and cooperative, administrative unilateral and compulsory. The color has been diluted, thus providing the possibility for the cooperation and consultation between administrative organs and counterparts in the implementation of administrative acts. Before making an administrative decision, the administrative organ has the procedural obligation to listen to the opinions of the counterpart, which provides a space and platform for equal dialogue between the administrative subject and the administrative counterpart.

The need to (III) standardize administrative litigation

Judging from the trial practice, a large number of administrative cases have been solved through consultation and coordination under the auspices of the court: some have been withdrawn by the plaintiff because the defendant changed the specific administrative act; some have been voluntarily exchanged with the administrative organ because the specific administrative act was found to be illegal by law; some have been withdrawn by the plaintiff because the defendant gave some benefits outside the lawsuit, the People's Court, as the presiding officer of the dispute resolution, grants permission to almost all applications for withdrawal. Instead of making these disguised mediation treatments a tool to circumvent the law, it is better to regulate the system, allow the parties to mediate and negotiate, and the court will review the legality of the agreement reached by the parties, without violating the parties' voluntariness and the mandatory provisions of the law. Without harming the public interest and the interests of others, confirm the legal effect of the agreement, and make mediation the protection of the legitimate rights of the parties, promote the work of administrative organs in accordance with the law.

(IV) the need to meet the requirements of WTO rules and to be consistent with international practice

Consultation, mediation and good offices are the basic principles established by the WTO to deal with disputes. The basic principles established by the WTO are generally applicable to all member states. The WTO has put forward new requirements for China's administrative litigation system. In the trial of disputes involving WTO rules, administrative trials should follow the basic principles of consultation, mediation and mediation established by the WTO to deal with disputes, so as to ensure consistency with international practice.

4. the Legislative Principle of Constructing the Mediation System of Administrative Litigation in China

(I) establish the limited principle of administrative litigation mediation. Mediation is not applicable to any disputed administrative act in administrative litigation. The rule of law principle of administration according to law requires that administrative subjects should not arbitrarily dispose of administrative power. Different administrative acts and different types of administrative cases restrict the mediation of administrative litigation. Moreover, if the scope of administrative litigation mediation is not restricted, it may lead to abuse of mediation power and affect the realization of the legislative purpose of administrative litigation,^[6]Therefore, our country's administrative litigation should establish a limited mediation system, and it is clear that mediation must be carried out within the scope permitted by law.

(II) establish the principle of the initiation of the parties to the mediation of administrative litigation. In order to better protect the legitimate rights and interests of the relative person and prevent individual judges or administrative subjects from using their power to suppress the relative person and force the relative person to reach mediation, thus damaging their legitimate rights and interests, mediation should be initiated by the application of the parties, and the judge has no right to initiate mediation of administrative litigation on his own, so as to ensure that the wishes of the parties are respected and the parties become the real decision makers of the agreement.

(III) establish the legal principle of administrative litigation mediation. When hearing administrative cases, the people's court shall, in accordance with the principle of voluntariness of the parties, persuade the parties to make mutual understanding and accommodation on the basis of ascertaining the facts, distinguishing right from wrong and clarifying responsibilities, and in accordance with the provisions of laws, regulations and relevant policies, let the parties reach an agreement voluntarily to resolve disputes and conduct mediation. The court should not simply and rudely "muddle" when conducting mediation, but should be established on a legal basis, strictly in accordance with legal procedures, and conduct mediation within the scope of the law. The power of the administrative subject is statutory and cannot be expanded or reduced without authorization, let alone abused, and the right of the defendant to punish or waive is limited to the scope of legal authority. Mediation in administrative litigation cannot give up or sacrifice the rights of the state in exchange for the purpose of interest litigation. Administrative organs can only apply mediation to resolve disputes if they do not violate the inapplicability of the law and do not harm the interests of the state, the collective and others.

(IV) establish the principle of priority of the plaintiff's interests in administrative litigation mediation. The plaintiff, as the relative of the administrative act, is often in a weak position, and the maintenance of the administrative subject's administration according to law cannot be at the expense of the legitimate rights and interests of the relative. In judicial practice, administrative acts with minor procedural defects should not be revoked but should be dealt with in a variety of flexible ways. In order to resolve administrative disputes as soon as possible, the court can organize both parties to mediate and close the case by mediation. Whether administrative litigation can be applied to mediation lies mainly in whether the administrative organ exercises the power of disposition in litigation to the detriment of national interests and public interests. As long as we recognize the administrative power to dispose of its functions and powers, and affirm that the exercise of such disposition is not necessarily at the expense of national interests and public interests, administrative litigation can be applied to mediation.

Conclusion

Administrative litigation mediation, as a way of closing cases of administrative disputes, has the characteristics of equality, voluntariness and simplicity. It can effectively resolve the contradiction between the administrative subject and the administrative counterpart, and play an important role in building a harmonious socialist society. With the emergence of a large number of non-compulsory administrative acts and the need to regulate administrative litigation, the establishment of China's administrative litigation mediation system has been put on the historical agenda. I believe that with the deepening of the construction of China's socialist country under the rule of law, the administrative litigation mediation system will play its due value and important role.

This article won the first prize of 2011 Jinan lawyer business paper selection

References:

[1] Bo Hongwen and Jin Zhao, "On the Improvement of China's Administrative Reconsideration Mediation System", web site:http://www.iolaw.org.cn/showNews.asp？id = 18205。

[2] "On the Establishment of Administrative Dispute Mediation Mechanism", available on the "Papers" website.

[3] Jiang Mingan, Administrative Law and Administrative Procedure Law [M]. Beijing: Law Press 2003, p. 245.

[4] Ying Songnian, Outline of Administration by Law [J]. Chinese Law Science, 1997(1):32.

[5] Yu An, General Theory of Administrative Procedure Law [M]. Chongqing: Chongqing Publishing House, 1998, p. 146.

[6] Wang Weiyun Wang Jianbing, "Discussion on the Establishment of Administrative Litigation Mediation System", http://www.chinacourt.org/html/article/200510/12/180843.shtml.