论中国行政诉讼和解制度的建立

Establishing a Settlement Regime in China’s Administrative Proceedings

我国《行政诉讼法》明文规定了“行政诉讼不适用调解”原则,并且对行政机关与公民的和解也未作规定,然而实践中和解普遍存在。行政诉讼和解存在的有力依据为:现代公共行政已从权力中心走向服务中心和行政裁量权的广泛存在。和解是不同于判决和撤诉的一种独立的诉讼制度,与法治原则并不矛盾。它体现了当事人的主体性,并能够促使新的行政活动方式产生。在中国语境之下,未来《行政诉讼法》应建立和解而非调解制度才是最佳选择。

The Administrative Proceedings Act of the People＇s Republic of China expressly prescribes that ＂mediation shall not apply to administrative proceedings,＂ and no provision is made about settlement between a state organ and citizens, but settlement widely exists in practice. The rationale as to why settlement should exist in administrative proceedings lies in the fact that modern public administration has changed its focus from power into service. Executive discretion is popular now. Settlement does not contradict the principle of government in accordance with a system of laws, though as an independent proceeding regime, it differs from judgment and the withdrawal of a case. It embodies the positive nature of the parties and can urge the starting of a new kind of administrative activities. In China＇s particular context, it is best for us to establish a settlement regime rather than mediation in administrative proceedings.