新时期行政诉讼调解制度的困境与出路

Administrative Litigation in the New Era: Dilemma and Solution

我国《行政诉讼法》明确规定:人民法院审理行政案件,不适用调解。这一制度设计的初衷是限制行政机关随意处分行政职权。实际上,行政机关在行政诉讼过程中实现调解只是对诉权的处分,而不是对行政职权的处分,又基于有效解决纠纷的现实考量,建立行政诉讼调解制度是必要的;同时,行政诉讼有其自身的特殊性,调解必须在程序和实体上受到严格的规制。

China＇s Administrative Litigation Law stipulates that mediation is not applicable in the handling of administrative cases by the People＇s Court.The original intention of this institutional design was to restrict the willfulness of administrative organs in the use of their administrative power in the litigation proceedings.In fact,mediation conducted in the process of administrative litigation is aimed at handling the rights of litigants,not accommodating the administrative power.While an institution of mediation in administrative litigation is necessary out of a practical concern over efficiency in the handling of administrative dispute,in view of the specific characteristics of administrative litigation,the practice of mediation must be put under strict supervision both in procedure and in essence.