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In the Administrative Proceedings Introduces the Mediation Mechanism the Discussion

Author: ChiWeiNa
Tutor: HeYunPeng
School: Yanbian University
Course: Constitutional and Administrative Law
Keywords: administrative litigation mediation Disposition right applicable scope
CLC: D925.3
Type: Master's thesis
Year: 2008
Downloads: 113
Quote: 0
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Abstract


According to No.50 of Chinese Administrative Litigation Law, when People s Court tries administrative cases, reconciliation is not suitable. According to this, the system of mediation for administrative litigation doesn’t exist in our country. However, in the trial practice the massive administrative case is the plaintiff, the defendant tacitly consents to even under the mobilization in the court to approve "outside the document to be coordinated" the solution, in the cause trial practice appears massively withdraws a suit the case, this kind of withdrawing a suit case phenomenon is actually stipulates to the legislation in is not suitable the mediation one kind of circumvention. How to solve between legislative and the reality contradiction, is suitable the mediation for the administrative proceedings to provide a reasonable platform, the standard and the optimization administrative proceedings case mediates the solution mechanism, becomes take constructs the harmonious society as under the subject big background, suspends in a general administrative proceedings judicature front important topic. Thus, it can be seen, when the administrative procedural law soon revises, discusses this question to have the great importance the theory practice significance.Just like Professor Luo Haocai says: "the administrative law theory must respond the social development and the administrative legal system practice realistic need, otherwise is unable to explain the administrative legal system phenomenon scientifically. " When the theory and the practice come apart falls into the difficult position, by now needed to transform the angle of view or the method, attempts the right of use theory with to practice diligently verifies mutually. Mediates regarding the administrative proceedings, at the same time its introduction has received the traditional administrative law theory the limit and the fetter, but in initial legislation time is not permitted, but in the judicial trial practice actually embarks from the practical utilitarianism has been carrying on the mediation in disguised form, by now needed to have the innovation, have the breakthrough theoretically, lays the foundation for the administrative proceedings suitable mediation. In view of this, many scholars were right "the civil rights strength could not punish" the principle to have the renewal understanding, thought the Administrative organ, in its freedom decided after deliberation in the scope might have the limited disposition right to the civil rights strength, "the civil rights strength could not punish" the principle to understand that was "the civil rights strength do not punish willfully" , the civil rights strength’s legitimate punishment must be feasible. The administrative proceedings mediation realized the goal which from it the solution lawsuit disputed to have truly finally decides stops numerously struggles, realizes the lawsuit economy incomparable superiority, was worth utilizing in reality.At present, no matter is the theorists or the practical realm, the request establishment administrative proceedings mediation system’s call is getting higher and higher. Establishes the mediation system in the administrative proceedings to become the mainstream viewpoint, in the related administrative procedural law’ s revision suggestion manuscript has accepted this viewpoint. This article introduced the mediation mechanism to the administrative proceedings in the feasibility to carry on the beneficial discussion. Meanwhile has made the division according to the administrative right’s particularity to the administrative proceedings case’s mediation scope. But how specifically to construct our country’ s administrative proceedings mediation system, but also many must be clear the concrete question, on administrative proceedings’ characteristic, the mediation system must have what special stipulation, these concrete questions need in present’s theory and the practice further thorough discussion research.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Administrative Procedure Law
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