和为贵——论行政协调的法制改革

The Legal Reform of Administrative Coordination

狭义上的行政协调包括行政程序之协调和行政诉讼协调。行政程序之协调指行政机关与人民在相关人民权利义务方面所进行的协商与沟通。行政诉讼的协调目的也是终结行政争议,以协议的方式终止诉讼。对于行政程序之协调,现行的若干制度均不能消除争议。而在行政诉讼协调中,行政诉讼不得调解原则并不存在于台湾和日本。必须在行政协调中建立行政程序及行政诉讼程序的连贯性机制。刑事诉讼中的辩诉交易,以及替代性纠纷解决机制都是对行政诉讼不得调解原则的挑战。

In a limited sense, administrative coordination includes coordination in administrative procedure and in administrative litigation. Administrative organs and citizens concerned negotiate and communicate with each other in terms of rights and obligations in procedure coordination, while litigation coordination aims to solve disputes by agreement. Our current systems can not eliminate the dispute between the two parties at all. As to coordination in administrative litigation, the principle that mediation is not allowed in administrative litigation does not exist in Japan and Taiwan District. A series of consecutive mechanisms in administrative procedure and administrative litigation should be established. In addition, the plea bargaining in criminal procedure and the ADR also bring great challenges to the principle that mediation is not allowed in administrative litigation too.