行政诉讼和解的合谋隐患及其消解

Collusion in Administrative Litigation Settlement and Its Regulation

《行政诉讼法》第50条规定"行政诉讼不适用调解"。人民法院以"和解"之名行"调解"之实。在《行政诉讼法》中确立和解制度的呼声越来越高。行政诉讼和解中的"合谋"隐患应重点思考。通过利益博弈分析法与个案研究法发现:在行政诉讼和解过程中可能存在不同类型的合谋隐患;行政诉讼和解过程中的合谋行为会导致"案结事不了"的和谐隐患以及法官的角色迷失。在行政诉讼和解的制度构造中为抑制合谋应当采取一些必要手段,即通过和解与审判的事权分离保证法官严守中立;通过明确行政和解协议的先予执行效力和可强制执行性来实现"案结事了";在立法中增设继续审判请求权以进一步保障撤诉原告的合法权益。

The No.50 of the PRC Administrative Procedure Law dearly states that 'mediation shall not apply to administrative proceedings'. Reconciliation in the name of settlement widely exists in practice. More and more people call for the establishment of a settlement regime in administrative proceedings. Formulation and justification are not the main obstacles to the establishment of settlement regime in administrative proceedings. Collusion in Administrative Litigation Settlement is the key issue. Through game theory and case analysis, we found that there may be different types of collusions in administrative litigation settlement. It is not conducive to social stability and the role of judges will be compromised. When building the administrative litigation reconciliation system, we should take measures to control the collusions in administrative litigation settlement. The separation of settlement and trial is helpful to judicial neutrality. Improving the prior-execution and enforceability of settlement agreement will be conducive to preventing post-decision disputes, and it is necessary for us to create the right of continual trial to protect legal rights of prosecutors who have applied for withdrawal of charges.