行政诉讼中“和解协议”制度分析

Analysis on the system of "Compromise Agreement" in Administrative litigation——from the Perspective of System Comparison and Construction

行政诉讼和解的目的在于节省司法资源,尽快结束诉讼,这符合构建和谐诉讼的理念。和解协议成立的基础条件是双方当事人法律地位平等、法官具有一定的行政自由裁量权。经过实定法分析,和解协议在性质上既具有行政法上公法契约的性质,又具有诉讼法上诉讼行为的性质。在法律效力上,经确认的和解协议具有与生效判决相同的效力。当和解协议存在瑕疵时,结合我国行政诉讼法的立法现状,通过再审来启动救济程序。

The purpose of compromise in administrative litigation is to conserve the judicial resources, and to end the lawsuit as soon as possible, which conforms to the idea of constructing harmonious lawsuit. The basic conditions established by compromise agreement are equal legal status of both parties and the judge participating ira the parties to a certain extent and existence of administrative discretion. By analy- zing positive law, the compromise agreement has both the nature of public law contract in administrative law and the nature of litigation behavior in litigation law. In the force of law, the compromise agreement which has been confirmed has the same potency with the effective judgment. When slight defect exists in the compromise agreement, by combining with our legislative situation of administrative litigation law, the relief procedure should be started through re-trying.