行政诉讼调解程序的正当性

The Fairness of the Administrative Mediation Procedure

国家公权不得处分,行政主体和行政相对人双方地位不平等,这两点作为我国行政诉讼法不确立调解程序的理由并不充分。域外行政纠纷诉讼和解和诉讼外调解为我国行政诉讼调解程序的确立提供了样本。原告被告的利益契合,单一司法判决程序的局限,避免因非正常撤诉而带来的不利影响,这些表明行政诉讼调解具有正当性基础,我国应建立行政诉讼调解程序。

In Chinese administrative litigation, the mediation procedure is not adopted for two reasons. One is that the national public power does not have the disposal right; the other is that administrative subjects and private parties are not on an equal status. But these reasons are not sufficient. The reconciliation of administrative litigation and non-lawsuit mediation of the foreign countries have supplied samples for our administrative litigation mediation. The administrative litigation mediation has its own fairness, such as the common of the plaintiff and the defendant, the limitation of unitary judicial procedure, and the avoidance of the disadvantage from abnormal withdrawal of a claim. Therefore, the Mediation Procedure should be established in Administrative Litigation Law in China.