Investigation and consideration of Sichuan Province administrative litigation settlement situation

Research group of Chengdu Hospital Release date: 2009-06-27 10:51:13

With China's social transformation and adjustment of the interest patterns, social contradictions and relatively complex, sharp, the results are often difficult to achieve rigid administrative litigation to settle disputes, make trouble v. effect; on the contrary, the administrative judge in the judicial practice summed up through the reconciliation between the parties can not only facilitate reconciliation the tough administrative disputes to be resolved, but also between the government and the people, administrative organs and the administrative relative person's understanding, trust can be improved, the relationship between the "official" and "people" become more harmonious. Just based on this kind of advantage, to coordinate to resolve administrative disputes have become more and more widely recognized and endorsed. However, China's current "administrative procedure law" the fiftieth stipulation: "people's courts in the trial of administrative cases, mediation is not suitable," the administrative reconciliation work, the lack of effective legal support, the formation of the conflict between the reality and the law on a certain extent, for the administrative proceedings reconciliation system to further establish the obstacle. Objective to reflect the rationality and feasibility of administrative litigation settlement way, we declare the "investigation and Reflection on the" Sichuan Province administrative litigation settlement key topic, in the investigation of the subject, and the practice of the basic situation of the interview, data statistics, questionnaire, collecting typical cases of administrative litigation settlement. The careful investigation, deeply analyzes the existing problems and causes, and expounds the theoretical basis and practical significance, and suggestions and countermeasures are put forward from the establishment and normal reconciliation in the administrative litigation perspective, with a view to further standardize administrative litigation settlement behavior, increase the strength and improve coordination and handling administrative cases of administrative cases coordination treatment the effect of reference, provides the reference for the "administrative procedure law of the people's Republic of China revised".

The basic situation, Sichuan Province administrative litigation settlement and basic method of

(a) the basic situation

1 the basic situation of our province court of administrative litigation settlement

From 2004 to 2007 November, province court administrative cases, a total of 46422 pieces, of which 15390 cases of administrative litigation, non litigation execution of 31032 cases. Reconciliation in 5140, of which 3175 cases of administrative litigation, non litigation execution of 1965 cases.

Specifically, our province court of administrative litigation settlement has shown the following characteristics and trend of development:

(1) coordination and reconciliation of administrative case ratio was increased year by year. In 2004, the court of administrative cases and 10708 of the cases, reconciliation in 1589, accounting for the total number of 14.84% cases, with this method, 2005, 2006, 2007 1 - November, administrative litigation settlement is respectively 1572, 1448 and 1289, accounting for the same year closed 17.54% of the total, 21.48%, year-on-year growth of 24.81%; 2.7, 3.9, 3.3 percentage points respectively.

Research group of Chengdu two court results also confirmed this trend of development. Some courts of reconciliation in administrative cases over which the count half, such as the Dujiangyan court of 88 pieces, 53 pieces of reconciliation; Wenjiang district court case 85 pieces, 44 pieces of reconciliation; High Court of 82 pieces, 45 pieces of reconciliation.

(2) the administrative reconciliation is constantly expanding trend. In 2004, the court coordination of administrative cases mainly relates to industry and commerce, demolition, trade and other three types, up to now has been extended to the business, labor and social security, judicial administration, traffic, land, tax, civil affairs, public security, housing registration, archives, urban construction and other fields.

(3) centralized coordination and administrative litigation type. It

From 2004 to 2007 of November administrative litigation settlement type, mainly concentrated in the administrative omission, administrative punishment, administrative license, administrative enforcement, administrative decisions and administrative compensation in six aspects, one is the most suitable for the administrative punishment, a total of 718 pieces, followed by the administrative omission of 545 pieces, 391 pieces of administrative decisions, administrative license 308, administrative compulsory 257 pieces, 75 pieces of administrative compensation, accounted for the total settlement coordination of administrative cases in 22.61%, 17.17%, 12.32%, 9.7%, 8.1%, 2.4%.

(4) coordination and reconciliation results mainly in the withdrawal signs. The way of reconciliation or administrative cases is relatively single, mainly in the withdrawal of the way, and in the case of reconciliation before is reflected in the judicial statistics available means of. In the case of withdrawal of administrative coordination, from 2004 to 2007 November, the plaintiff voluntarily withdraw for 2817 pieces, accounting for 88.72% of the total, the defendant to change the specific administrative act, the plaintiffs claim is 358, accounting for 11.28% of the total.

2 administrative organs, administrative counterparts towards the basic situation of administrative litigation settlement

In view of the critical factors of administrative litigation settlement can be reached between both parties is voluntary and cooperation, task group focused research and current situation of the court system in our province for reconciliation in administrative cases, the administrative organs, administrative counterparts to administrative cases of reconciliation in the basic situation of the idea, so that the overall on a more comprehensive grasp the operation of administrative cases reconciliation of our province.

(1) the administrative organ to the basic situation of administrative litigation settlement

Due to the administrative organ types are complex, difficult to survey, this research group in recent years, Chengdu municipal court by the nature and quantity of case, the more housing, land, industry and commerce, labor and social security, City Management Bureau, bureau of administrative law enforcement, the government legal department visited, roughly as follows:

Administrative disputes, disputes is increasing year by year. Social transformation, the reform period, the administrative organ in the social management process will inevitably break some restrictions and fetters of existing laws, or suffered some blind spots in the law, resulting in the so-called "benign" illegal behavior, namely the overall benefit from the progress of the society, it has certain rationality, but in the legal elements of the flaws, and the rule of law environment and citizens' legal awareness, between the administrative organ and the relative person's dispute to rise year by year, which mainly concentrated in the land requisition, housing demolition, social security, urban management and law enforcement, administrative penalties and other fields, in Chengdu City Housing Bureau as an example, in 2005 as the administrative litigation defendant was 85, in 2006 this figure up to 103, or 21%.

Two is the administrative litigation settlement basically positive attitude. In the process of the visit, the majority of the administrative organ believes that the value of the legal concept should not be considered simply the pursuit of legal facts and specific cases in the absolute justice, but also the social stability and harmony. In order to coordinate, and flexible means of resolving administrative disputes not only with "political themes in the construction of socialist harmonious society", but also with Chinese traditional social culture, can play a better effect than hard decision. In fact, the administrative organ of reconciliation in administrative procedure in some has been normalized, mainly some of the specific administrative act with discretion in the administrative organs, such as administrative adjudication, administrative license, administrative contract, administrative compensation, administrative omission, administrative punishment (amplitude), especially in the "Administrative Reconsideration Law Implementing Regulations" implemented, is to increase the administrative coordination, in the review stage so that, in does not affect the authority of public power and public interest concessions to the premise of the expense, the administrative organ for administrative cases to the people's court is affirmed through reconciliation and relative come to an agreement, by the court take charge of reconciliation, more conducive to communication between the two sides.

Three is the application of reconciliation in administrative cases types have a choice. In spite of administrative litigation settlement practices in comparison to agree, but reservations about its scope of application. Administrative power is public power, the administrative organ to exercise the administrative power is the essence of social affairs on behalf of the State Administration, the traditional administrative power has absolutely no disciplinary nature, administrative organs and administrative counterpart "no room for a supply of sth.", with the change of management authority to the service of administrative power, from the reconciliation level, the executive power has certain elasticity and flexibility, but still limited scope of administrative organs in administrative litigation settlement, in relation to the interests of the third person or custodial administrative behavior, administrative organs are still damage administrative authority, imbalance and malfeasance, scruples, control is difficult to transcend the reality and the law.

(2) relative person of the administrative management towards the basic situation of administrative litigation settlement

The team found that in the process of investigation: administrative relative people most want to reach an agreement through reconciliation and administrative organs. For their part, can make their own civil rights relief and maintenance is the most worthy of attention, as for the method is flexible, through the administrative litigation only solve their disputes or reaches a predetermined target a way or means, even in all other methods (such as complaints, letters and visits, an administrative reconsideration) after last ditch results. And the administrative relative person also agree on reconciliation court led, they believe in the administrative procedure, administrative organs and is the relation of management, they are naturally weak, does not have the equal conditions, and in the process of administrative proceedings, the parties have equal legal status, the court can provide a a platform to consultation and dialogue and reconciliation in administrative organs, and rigid referee compared, both easier to accept and implement, more conducive to the establishment of harmonious relationship between the government and the people "".

It is worth mentioning that, there are still a few relative person of the administrative management of the reconciliation doubts attitude, even extreme emotional conflict. They are in the subconscious that administrative litigation is certainly his side, administrative illegal, as long as the people's court to reconciliation, means losing the judge dare not or unwilling to executive decision, administrative authorities for good to say, "Officials one another., collusion cheat" too, so the administrative litigation settlement has a "habitual prejudice".

(two) the basic approach

Since the release of the administrative procedure law, administrative cases by "consensus reconciliation" process already exists, in the trial practice in fact in recent years, along with the "pursuit of legal effect and social effect unified, realize the change to conclude the case" administrative lawsuit function, and Xiao Yang in the National High Court Dean forum pointed out: "to actively explore and improve the system of administrative litigation settlement, as far as possible coordinated way to urge the parties reconciliation", combined with the characteristics of the court administrative trial and special procedural requirements in the judicial practice, ceaseless exploration, refining, summed up a set of effective reconciliation practices. On the basis of empirical research, Sichuan Provincial Higher People's court also timely introduction of the "administrative cases coordinated views (Trial)", to guide the work of administrative reconciliation in the court, make it more standardized and mature. Taking Chengdu Municipal Court for reference, the main way is as follows:

1 principles: coordination and reconciliation of the range is limited, generally defined within the scope of their statutory functions and powers of administrative subject and discretionary administrative acts, such as the Chengdu City Intermediate People's court enacted "about carrying out the coordination guidance" in administrative trial, will coordinate the range determined at discretion the right amount of cases, administrative adjudication of cases, does not perform or delay in performing its statutory duty cases, cases of administrative contract, administrative compensation cases and other suitable coordinate to solve cases; in the aspect of the principle of coordination, are more consistent with the majority of the court following as: one is the principle of voluntary, with full respect for the wishes of both parties, not forced to accept coordination; two is the legal principle, coordination and not in violation of state regulations, and may not damage the national interests, social public interests and the legitimate rights and interests of third people; the three is the principle of efficiency, the people's court shall not to delay of cases to coordinate the name, "to mediate, when the Adjudication", the parties can not reach an agreement, it shall timely judge.

2 coordinated manner: administrative dispute over civil disputes more prominent contradictions, social more sensitive method in coordination, judges should not only absorb the mediation of civil disputes, the unique ways of coordination but also "throw a stone to clear the road" to explore suitable for administrative disputes. Such as interactive, Chengdu City, Wuhou District people's court in the judicial practice of isolated, first in type, avoidance, eclectic and comprehensive coordination method; method of Chengdu City Wenjiang District People's Court of social coordination, collaboration, sentenced v. all forces after the construction and urge to perform. In addition, some in varies from case to case, differ from man to man up and refine out unique coordination:

(1) with the help of his force, promote reconciliation. Including the invitation to the people's jury or other professionals involved in the coordination, increase the trust degree of coordination; and the legal department of the government to exchange views, to explain the pros and cons, contribute to reconciliation, the Chengdu two level courts and administrative organs generally established contact meeting system, regularly informed of administrative trial, the existence of common research administrative adjudication and administrative law enforcement the problem, coordination and handling of major and complicated cases; to spread, social influence, difficult to mass administrative disputes, uphold the party's leadership, actively to the Party committee report, seek the Party committee and government support to resolve disputes.

(2) non litigation cases of execution into the public hearing. In 2007 June, Chengdu City Intermediate People's hospital successfully coordinated a number of Chengdu city FIMITIC for the implementation of the employment security for the disabled non litigation cases of gold, through public hearings, the trial and effective combination, contributed to the relative person and administrative agencies in the review stage to reach a settlement, take the initiative to fulfill their obligations, both to reduce the cost and improve the administrative and judicial, between the two sides understanding.

(3) the combination of reconciliation and judicial advice. In the case of administrative coordination process, in addition to facilitate the parties reached a settlement agreement, to find problems in enforcing the administrative law, giving full play to the role of judicial supervision, judicial suggestions to the administrative organ in a timely manner, in order to standardize administrative law enforcement, the purpose of specimen, such as in the administrative reconsideration of labor and social security Fu v. the government of a city., although the two sides reached a settlement agreement, withdrawal and closed, but the formulation of regulatory documents found in the review process court in Labor Bureau seriously lags behind reality, may cause a large number of similar administrative dispute, in a timely manner to the city government issued to modify and improve the standard of judicial suggestions, then, City Labor Bureau the adoption of the proposal, introduced the "on the basic medical insurance ginseng protect personnel to different medical notice" of the relevant issues, from system level to solve the problem.

The 3 part: the court coordination coordination ways to resolve administrative dispute is the coordination throughout the whole period of administrative litigation, namely from the case to the court before, on every link in litigation as far as possible for parties create coordinate environment, promote reconciliation, some law school with the consent of both parties after coordination, suspension the case, for the parties to provide more opportunities and coordination and time. Then, some courts before coordination effect extends to the case judgment. Such as Chengdu City Wenjiang District People's Court on the basis of summarizing the practical experience of the administrative coordination specially formulated "on the innovation mode of administrative coordination to establish administrative dispute case review stage coordination mechanism of opinions", set up administrative cases composed of on the court and administrative court the case review coordination group, based on the investigation of the complaint preliminary review of case coordination, resolving conflicts before the dispute has not evolved into action. In addition to Sichuan Province Chongzhou City People's court sentenced to coordinate, coordinate the referee after the parties to fulfill the obligations of the content, way, time, through the visit the parties, improve the legal awareness of citizens, promote the administrative subject, creating the "official" harmonious, have achieved good legal effect and social effect.

Results: 4 coordinated through reconciliation case can be summed up in the following three ways: one is by administrative organs in administrative coordination opinion issued on the spot, the collegial panel declared proceedings end, this method is rarely applied in judicial practice; two is made by the people's Court issued by the CPPCC harmonic solutions of books, by the parties in the legal document on the signature, but due to the current legal restrictions, breakthrough only very few court; the three is to reach an agreement, in the record, the court ruled to approve the withdrawal, withdrawal, in accordance with the administrative procedure law of fifty-first "the people's court to administrative cases before announcing a judgment or ruling, the plaintiff applies for withdrawal of the case, or the defendant to change the specific administrative act, the plaintiff agrees and applies for the withdrawal of the suit, whether or not to grant the approval by the people's court, ruled", it is most court adopts the way of closing, and there is no explicit legal provisions before a more conservative way of closing.

5 coordination and reconciliation agreement: the administrative case both parties reach a reconciliation agreement, after the plaintiff applies for withdrawal of the case, the majority of the court is not a closed up, but urged reconciliation protocol implementation, truly the case closed. For any party estoppel, designed the control measures: the defendant in the settlement agreement during the modification or rescission of the original specific administrative act, the plaintiff's suit again, according to the law ruled inadmissible; after the withdrawal, if the defendant refuses to perform the mediation agreement, some courts choose to organize the parties to coordinate reconciliation, to the administrative organ a written legal advice or report to the local Party committee of National People's Congress, urging the implementation of the agreement; a few courts such as Chengdu City Qingbaijiang District People's Court of this kind of situation as "new reason", allowing the plaintiff to sue, as a remedy for the plaintiff rights.

Legal problems and confusion in administrative litigation settlement of two, under the current legal framework

The current administrative procedure law of our country stipulates clearly that the fiftieth "people's courts in the trial of administrative cases, mediation is not applicable." To actually apply reconciliation of administrative cases is "the name is not correct, the words will not ring", the lack of legal support. Reflected in the judicial practice there will be many influence effect into full play of the reconciliation problem, as follows:

(a) the form and effect of reconciliation

At present, forms of administrative litigation settlement results not only process. Due to the current administrative procedure law "bound", the vast majority of the court of administrative litigation settlement was not open situation, reflected in the results basically is the reconciliation between the two parties, withdrawal and subsequent closing process of reconciliation, for this part of the first opera, many courts are omitted, a court only in the record, coordination and reconciliation in the form of performance without a formal, public legal documents as the carrier, such as the coordination of books and other administrative cases to document between the parties, the focus of controversy, the content of reconciliation, reconciliation content type and period etc.. At the same time, the lack of form and non formal more or less affected the effectiveness of the settlement agreement, although the settlement agreement reached between the two parties is based on voluntary, and the contents of the agreement and validity review after, but the court still cannot be equated with civil mediation book, give its corresponding legal effect, legal protection and relief show "weakening" state.

(two) the scope of reconciliation

There is also dispute reconciliation in administrative cases may be applicable scope: some legal issues of administrative litigation needs to solve is the administrative behavior, and the rationality of it without any judgment (administrative punishments except), and a large number of administrative cases in reality is the rationality and the proper court, the scope is belongs to the administrative reconciliation for such cases is questionable, whether a court review range through the pan too and attached the administrative court cases pressure of sorrow. Another difference between this problem and the derived is: the mainstream view that wide coordination of administrative cases should be limited, but still have different ideas that administrative litigation mediation cases without limiting the scope of administrative cases, any character can be coordinated, which is decided by the nature of the coordination. Basic coordination scope of limited even in approval, judicial practice all over the court also no uniform scale, mostly in the "crossing the river by feeling the stones" state, to mediate, and vice versa.

(three) the issue of time coordination and reconciliation

The trial of administrative litigation law on administrative cases to make clear, this is reflected in the legal efficiency value. But the administrative dispute in reality, the relationship between the sharp contradiction perplexing, coordination with the referee is relatively large, the court after the review of administrative dispute, according to the contradiction between the two sides focus planning a proper coordination of programs, often called the parties repeated discussion, sometimes also must give both sides a time of emotional stability and Choice Consideration period, in case of not with the situation, also with other force coordination, in does not coordination, advance coordination, mediation work even cast to waste. As the coordination required a longer time, the law of time seems to be the stumbling block of reconciliation work. This problem in the case of coordination link most outstanding performance, according to the "administrative procedure law" forty-second stipulation: the people's court receives a bill of complaint, after examination, shall file the case or decide not to accept it within seven days. Because of the case review period of only 7 days, in such a short period of time to dispute the two sides reached a settlement agreement is indeed very difficult. So, whether the administrative coordination period can not included in the time limit, it is an urgent need to solve the legal problems.

(four) the coordination of the implementation of the settlement agreement problem

The parties reached a settlement agreement is not the end of the administrative coordination, to really end the case, must be after the settlement agreement. In judicial practice, the execution reconciliation agreement is a difficult problem, because the law does not expressly authorized administrative coordination, the settlement agreement reached by the parties effectiveness greatly reduced, the agreement does not have enforcement powers, can only rely on the self fulfillment and the court to perform, especially after the administrative organ's withdrawal, or refuses to perform the settlement agreement, the court would have to "non mandatory" means to supervise the administrative organ to perform, but on the other hand, the plaintiff and the loss of the right to sue again, in relief is relatively backward, for the CPPCC the social effect is reflected.

(five) grasp the method and the dynamics of reconciliation

The content and the process of administrative co-ordination is more abstract, administrative coordination of external visual feel is judged by results, and for the host of administrative co-ordination judges, measure and strength is not only a science, but also an art, in general it is difficult to grasp. When, when found itself is a subjective judgment, the judge that the case and reconciliation may, perhaps in the party view is to urge, to induce and promote tune, to drag pressure; judge for facilitating the reconciliation and protracted, the parties may be misinterpreted as "gang up" or "Maoni", the courts are reluctant to judge or not the referee. Especially the administrative cases in some third people to participate in the proceedings, the judge must take into account the interests of the three parties in the coordination, the slightest mistake could lead to criticism, coordination in the judicial practice difficult, largely resulting.

(six) the court play the leading role of

The current judicial practice, the court on whether to inform the parties of administrative coordination and related rights and obligations is in an embarrassing position, because the law clearly stipulates that the administrative case does not apply mediation, the court did not want to "take the law against the opinion of" clearly inform the parties can coordinate, which can only attack by innuendo lead parties to settle, or provide some feasible for the parties to choose according to the focus of controversy both sides, do some good to the court to be patient explanation, the legal provisions and the reality need and practice make a reasonable explanation, the parties and then based on the voluntary of coordination, however, the court in reconciliation still tied hand and foot, it is difficult to play its active role; at the same time, because of uneven around the court administrative trial personnel coordination, coordination work in depth are different, which causes the court leading role in administrative litigation settlement in overall level affected.

The legal system of administrative litigation mediation stipulation and rejection, legislation and the demand of the society, between the approach of reconciliation and judicial practitioners have adopted, and formed a strong contrast. When the provisions of the administrative procedure law, the existing into administrative cases reconciliation coordination practice into the bottleneck, how to adjust, adjust or even break "Zhi elbow", make the administrative reconciliation in public, formal, legal, realizes the legal effect of administrative trial, economic effect, political effect and cultural effect unification, this is what we currently facing the biggest confusion and urgent.

Analysis of the causes of three, in the administrative proceedings reconciliation system implementation difficulties and problems

"Since the implementation of the administrative procedural law", the people's court basically follow the "administrative procedure law" provisions of article fiftieth on the trial of administrative cases is not suitable the mediation, adhering to the principle of legality review in administrative trial, for the administrative action trial basic to legitimate or not judgment. Objectively speaking, this mode of trial in administrative litigation law "implementation" at the beginning, for the protection of citizens, legal persons and other organizations of the legitimate rights and interests, supervision and administration according to law has played an important role, played a positive effect. But also should see, our current law is not fully mature, especially with the development of market economy, in the administrative management from the traditional "administration" to "the transition period of service administration" conversion, highlighting the various contradictions and complexity and profundity, hope all administrative disputes can be solved through administrative the final judgment court litigation, requirements of administrative cases either this or that all is not realistic, relies on "a sentence of" single trial has been insufficient to effectively resolve the "official civil disputes", in some cases can not be achieved good social effects. Facing the new situation of administrative trial appeared, engaged in administrative trial judges with a high degree of political responsibility and legal responsibility in the trial practice, the wisdom of the introduction and application of the civil litigation mediation way, successful coordination with the possession of a considerable proportion of the administrative case, effectively resolving administrative disputes, made good social effect. Social transformation will inevitably bring about the judicial transformation, practice has proved that the systems of reconciliation in administrative proceedings, it is a good way of trial. Administrative act which can standardize the administrative organ, also can effectively solve the specific problems of the administrative relative person; neither directly and the reality of social conflict, and cultivate the concept of the rule of law, to promote administration according to law. However, in judicial practice, the work of reconciliation in administrative cases still had many problems and difficulties plagued by administrative law judges, analysis of reasons, mainly in the following aspects:

(a) the defect of the legal provisions

"Administrative procedure law" stipulates that the fiftieth "people's courts in the trial of administrative cases, mediation is not suitable," the provisions are based on the "public rights can not be punished" theory. The theory maintains that the public power in the administrative legal relationship of administrative power belongs to the state, administrative law has been set up in advance in the State Administration, the administrative organ shall make a kind of administrative behavior in any case, the administrative organ can not take all or part of the way to give the administrative authority to promote reconciliation and relative person, so the administrative lawsuit lost premise and foundation of mediation. The people's court can only be based on the review of legality principle, to maintain or cancel the decision of the administrative action.

But in the practice of administrative trial, administrative cases take considerable proportion in administrative law judge acquiescence or mobilization, the plaintiff and the defendant through an out of court settlement way, settle the administrative disputes, and to the complainant to withdraw, the court ruled to approve the withdrawal form, essence to cover mediation. Visible administrative cases reconciliation and mediation work in civil cases, though in different forms and degrees, but no substantial difference, is through the courts for both parties to do the work, so that the two sides agreed to resolve disputes, the final.

"Not applicable law mediation" make administrative judge in the trial cannot justifiably presided over the parties to the mediation, fear is suspected of violating the law. Therefore in administrative trial mediation from both the formulation and the choice of methods, are "partly veiled", the essence of mediation, to crown the "reconciliation", should be convened the parties under the auspices of a judge, the transparent sunlight mediation to face the public, and to choose "back to back" mode. The judge so back and forth between the plaintiff and the defendant, greatly reduce the working efficiency, if the two sides reach a mediation agreement, the case ended, and the plaintiff withdraw, to the satisfaction of all; if the mediation fails, the legitimacy of the court mediation credibility and will be questioned, so the court in a very passive situation. In order to assist not with current law, administrative law judge mediation working is tasted, it deeply. Administrative dispute based on such reason that part can through mediation to resolve the contradiction can not be resolved, and even the formation of new more.

(two) the current legal way is single

In administrative litigation, judgment mode single problem is very outstanding, the current "administrative procedure law" administrative litigation mediation is not applicable restrictions, in administrative litigation judgment mode only verdict. When the plaintiff and the defendant to reach an agreement, the plaintiff no longer challenged the legitimacy of the administrative action, administrative dispute is resolved, only the plaintiff withdraw case, the court ruled to approve the withdrawal and ended. Due to the nature of the decision is different from the civil lawsuit mediation, so it can not be the court enforcement according to the. So when the trial ended, one of the parties refuses to perform the agreement, the lack of effective means of supervision of the parties to perform the agreement in law. So whether the plaintiff or defendant reason for doubt is based on the agreement, not take a positive response towards the coordination of the court, thereby increasing the court coordination difficulty in objectively, affecting the coordinated success rate.

(three) from the plaintiff's resistance

In the administrative order in the country, as the managers of the citizens, legal persons or other organizations with respect to the managers of administrative organs is to accept and obey the management status, administrative litigation and administrative organ provides an equal dialogue platform for it, in the proceedings, some people always want to administrative organs must high and low, or unwilling to accept the court mediation, the mediation or expectations too high, it is difficult to reach an agreement.

The reason mainly has following several points: 1 the plaintiff distrust in court. The plaintiff is often in other ways are not resolved with administrative dispute, only a last resort to litigation, the final choice, they tend to have higher expectations, hopes that the court will make a favourable ruling. For the coordination of work conducted by the court, the plaintiff always have doubts. This source of traditional idea on "Officials one another.", that the court will stand in the executive position to jointly deal with the plaintiff, or take administrative organs, so they are often reluctant to coordinate the work of the court. 2 the plaintiff's purpose is not to seek some kind of present interests. In administrative litigation, the plaintiff is most litigation and to protect or seek some kind of present interests. The court through the coordination of the interests of the plaintiff is given by the administrative organ in flexible ways, generally can solve administrative disputes. If the plaintiff is not the purpose of this, but to get a "statement" through litigation, to play a demonstration effect, the plaintiff to litigation request, there is no possibility of coordination. As in the trial practice, the most commonly encountered v. labor and Social Security Bureau work-related injuries that decide the case, because the Labor Bureau of labor does not belong to inductrial injury decision directly relates to the follow-up treatment costs and treatment of the workers, in order to solve the current problems, the workers will make a lawsuit of labor bureau does not belong to inductrial injury decision, when the court by employer and coordination, properly solve the plaintiff any menace from the "rear" later cases usually ended with the withdrawal, in general, the plaintiff won't the work-related injuries that decide right and wrong and adhere to the procedure. Conversely, some involving current policy case, the plaintiff's purpose is to purchase procedure to deny some policies and regulations, the coordination of such cases will be very difficult, on the one hand that the plaintiff did not reach the purpose of litigation, refused to accept the coordination, on the other hand, as the stability is to the administrative organ to policy concerns and continuity are unwilling to respond, to enable the court coordination efforts failed. 3 the plaintiff's expectations too high, can not meet the requirements of the defendant. Some plaintiffs admission cases have full assurance of success, then price oneself out of the market, more than the administrative discretion limits, eventually lead to coordination failure. Such as land acquisition compensation cases and City Housing Units compensation case, this kind of situation is more common.

(four) from the defendant's resistance

Administrative organs in litigation is still to managers themselves, believed to represent the state in the exercise of powers, the court granted on their side, so the court co solution work with negative attitude.

Analysis of the reasons for such a situation is: 1 the defendant "official standard" mentality. Not responding or to cope with the negative, that the court will not found lost, do not accept the coordination of court, the court can not be coordinated work. 2 administrative efficiency is not high, the best compromise opportunity loss. The administrative organ is the chief of the chief executive, often do not participate in the proceedings. When in a negotiation intention and the plaintiff, the defendant respondent personnel only one report, and then by the higher layers of approval, approval results down, also had the very big change, the two sides are very difficult to reach a consensus. 3 the defendant of administrative organs in cases involving the local Party committee and government's central work and group relates to social stability ", asking the court to maintain the" overall situation ", maintain the administrative organ wrong administrative behavior, does not agree to negotiate. 4 administrative organs do not strictly fulfill the settlement agreement, the reconciliation work not to over effect. The defendant in order to avoid the consequences of the losing, reached a settlement agreement with the plaintiff, but in the actual performance and not in accordance with the agreement, the plaintiff did not withdraw or withdrawing again after the prosecution, the case can not be solved.

(five) the court itself from the reasons and difficulties

In order to coordinate the settlement way to resolve administrative dispute, is a very effective method of trial court trial of administrative cases, many courts have also done a lot of work and actively attempt in this field. But it should be noted that there are many problems in the inner court, there are a lot of difficulties. Specific performance in the following aspects: 1 the court judicial authority has not been well established, not enough to make the parties convincing, make coordination reconciliation is difficult. 2 some administrative judge for administrative cases, lack of a high degree of political sensitivity and sense of responsibility, confined to case, machinery applicable law, missed the chance of reconciliation. The 3 part of the administrative law judge coordination ability is not strong, comprehensive judicial incompetence, cannot adapt to the need of reconciliation work; and judges that the coordination work is too cumbersome, and would affect the court authority and efficiency in handling the case, do not want to do careful and meticulous work, a sentence. 4 because of the trial time limit, so the court no more time for reconciliation work, approaching deadline, even with the reconciliation may, also had to rush to judgment. 5 some court leadership on administrative trial is not enough to pay attention, do not come to reconciliation in administrative cases, but the administrative tribunal coordination work in some cases and not, the work can not be completed.

Five, countermeasures and suggestions

Through the dispute settlement mechanism of reconciliation in administrative litigation cases, the proper settlement of administrative disputes, resolve social conflicts, in practice although it has become a consensus, in the administrative court throughout the trial practice is also actively carry out a lot of reconciliation, but China's "administrative procedure law" in article fiftieth of the "people's courts in the trial of administrative cases, does not apply" provisions of mediation has been restricted to promote the work of administrative litigation settlement. How to give full play to the administrative proceedings reconciliation dispute resolution mechanism in the framework of the existing legal under the utility from the legislative level, and how to solve the current mechanisms of facing the embarrassing situation, is the key to the following.

(a) the reconciliation of the legislative proposals

Clearly defined 1 "administrative procedure law" article fiftieth administrative cases, mediation is not suitable, is the biggest obstacle to carry out administrative proceedings reconciliation work. It is because the provisions of the people's court in existence, reconciliation of administrative cases, usually think, adopt various means of adaptation, in violation of the provisions of the law under the premise of not possible to reach a reconciliation, but the effect is often not just as one wishes, in practice even after losing parties in court, in violation of the above provisions for requesting confirmation of organization and coordination, examples of illegal procedure in the court. As previously discussed, the coordination and reconciliation mechanism is of realistic significance in administrative proceedings, therefore has the relevant provisions of the "administrative procedure law" the necessary modifications are made, in order to adapt to the socialist construction governed by law at the present stage of social needs, give full play to the coordination of reconciliation in administrative litigation action. Of course, the "administrative procedure law" provisions of the amendment should also consider the special nature of administrative proceedings itself, to the basic function on administrative supervision of administrative actions, not advocate unrestricted in administrative proceedings to mediation, so the fiftieth can be changed to: People's court administrative cases, mediation may be conducted in accordance with the law. At the same time, it is necessary to increase the mediation cases shall be issued by the administrative mediation book. Through the revision of legislation, can make the person work of reconciliation in administrative litigation go up on stage, improve the enthusiasm of the judges, the authority to strengthen the coordination work of the people's court, the parties to resolve administrative disputes increase through the coordination of the faith, so as to promote the "government and the public relations" harmony.

In the next 2 to modify the "administrative procedure law", the judicial interpretation to revise, increase the content of administrative mediation. The judicial interpretation of the specific work of the judicial practice has a strong guiding role, the Supreme People's court "on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" modifications, can from the following several aspects:

(1) the scope of administrative litigation mediation clear provisions applicable. Due to the particularity of administrative litigation itself, not all administrative cases mediation procedure, so the administrative cases which types can apply mediation should have clear provisions in the judicial interpretations.

(2) clear provisions on administrative mediation fails to perform such obligation, the other party may apply to a people's court for compulsory execution. By this rule, authority to coordinate the work of the people's court, the parties to the mediation system to enhance confidence, improve administrative cases, mediation success rate.

(two) the administrative litigation reconciliation with

Due to the characteristics of law itself stability and lag and amendment of law of long-term program requirements, expect immediately on the "administrative procedure law" and the judicial interpretation made is not reality. Therefore, at this stage in the administrative proceedings reconciliation mechanism is introduced to solve the realistic problems, accumulated on the other hand also can pass the application and experience of practice to promote the legislative changes. This paper will discuss the specific operation of the present systems of reconciliation in administrative litigation.

1 the reconciliation of the guiding ideology, principles and scope of application

(1) the guiding ideology of the administrative proceedings reconciliation: the sixteen session of the six plenary session of the "CPC Central Committee on building a socialist harmonious society certain major issue decision" will "improve the judicial system, judicial guarantee" to strengthen the social harmony as an important content of the socialist harmonious society, "can then, when the adjudication, mediation and judgment, to conclude the case" has become the people's court to determine policy sixteen words guiding in judicial work. The 17th Party Congress passed "about the report of the sixteen Central Committee Resolution" also explicitly pointed out that, to properly handle internal contradictions, and promote social fairness and justice, promote the building of a harmonious socialist society. In March 7, 2007 the Supreme Court issued "on further play the lawsuit mediation in a number of opinions" constructs the socialism harmonious society the positive role, not only for the further strengthening of civil and commercial disputes, mediation in criminal incidental civil cases made important instructions, and provides for the administrative litigation cases, criminal cases and other minor criminal cases, the people's court according to the actual circumstances of the case, according to the principle and procedure of civil mediation, to try to push the parties reconciliation. The spirit of the party and the Supreme People's court shall fit the system demand of constructing a harmonious relationship between the government and the people of current our country, pointed out the direction of reconciliation mechanism for the introduction of the current people's court in administrative litigation.

(2) the principle of administrative litigation reconciliation

A, adhere to the limited coordination principle. Not in the administrative proceedings any administrative disputes are suitable for reconciliation, reconciliation should be restricted in a certain range. (a) restricted within the scope of their statutory functions and powers of administrative subject. The administrative subject only in their statutory functions and powers within the scope of revocation, change the specific administrative act to be considered valid, if encouraged, allowed the administrative organ to reach a reconciliation with relative person outside the scope of their statutory functions and powers, it will undoubtedly lead to administrative disorder, and therefore should not exceed the statutory powers of administrative reconciliation work. (b) limits within the range of non strict administrative act. In the coordination, should belong to the strict administrative act note review dispute administrative behavior, if the strict administrative act, the administrative organ should strictly comply with the laws, regulations, there shall be no change, there is no freedom of choice is possible.

B, adhere to the principle of legality. The people's court organizes the coordination, shall not violate the national laws and regulations, and must not harm the state, the collective and the social public interests. (a) coordination procedures to legitimate. Coordination of the procedure of administrative litigation from civil mediation procedure, at the starting stage coordination of procedures, the parties concerned may party or parties put forward application for coordination, can also be made of the collegial panel proposed coordinated recommendations, but only after all the parties have agreed to by the court led, can enter the coordination procedures. (b) coordination content must be legitimate. To coordinate the people's court, the content of coordinated shall not violate laws, administrative regulations of the mandatory provisions of the content, not to damage the interests of the state, social and public interests or the legitimate rights and interests of the expense of others, shall not be contrary to good morals and the social public morality. Administrative litigation mediation shall coordinate the legality of specific administrative acts being sued. (c) coordinated approach to legal. Should follow the principle of the equality of litigant status, pay attention to the protection of the interests of the relative person, "shall not be used in pressure promoting adjustment", "to determine the pressure", "pressure" to advise ", to induce and promote tune", "to drag pressure", forcing any parties accept the coordination, the and the solution possible cases, shall create conditions to facilitate settlement, the parties do not agree to the circumstances, should be promptly put an end to the coordinated and judgment.

C, adhere to the principle of voluntary. The people's court organizes the coordination work, should fully respect the will of the parties, to fully guarantee the parties in the meaning of the expression of freedom, true, form consensus, completely resolve disputes, eliminate disputes. Adhere to the principle of voluntary required throughout the coordination work experience, including two aspects of procedure and entity.

Specifically, in the process of reconciliation in administrative trial in adhering to the principle of legality is the basic premise of all the work, otherwise it might encourage acquiescence, administrative organs for reconciliation with the relative person in violation of the requirements of administrative law, the administrative disorder caused by.

(3) the administrative proceedings reconciliation suitable case scope. Any administrative action is not the administrative proceedings reconciliation are suitable, generally speaking, the reconciliation is mainly applied in the following cases:

A, the cases of administrative compensation. "Administrative procedure law of the people's Republic of China" sixty-seventh paragraph third clearly defined, mediation compensation litigation, administrative trial by the people's court presided over the mediation, the parties reach an agreement of mediation, the court shall make a written conciliation of administrative compensation shall be served on both parties, the administrative compensation mediation and judgment are of the same effect.

B, discretion case. This kind of case in administrative punishment as a typical example, the people's court shall ascertain the facts of the party by law, the legal provisions in the range, by mutual consultation, determine the applicable penalty type or amount.

C, administrative adjudication of cases. The Supreme People's court "on the implementation of people's Republic of China Administrative Procedure Law" interpretation of several issues "sixty-first stipulates:" the equality between the main civil dispute the verdict of unlawful civil dispute, request the people's court to solve disputes, the people's court may be heard ", therefore, in the case of administrative adjudication, the people's court may through the coordination of civil disputes between parties to resolve disputes between the relative person and administrative disputes.

D, do not perform or delays the performance of his statutory duty case. In such cases the relative person directly the purpose of prosecution is to request the court to order the defendant to perform their statutory duties, is able to perform his duties, the people's court may carry out coordination, promotes administrative body to respond quickly, so as to eliminate disputes, to meet the people's claim. To continue to perform the duties have been unnecessary, relative to the damage caused by the act on the grounds, administrative compensation litigation, can also mediate according to relevant provisions of "State Compensation Law".

E, the cases of administrative contract. The administrative contract is a contract, although with the administration, but also with the basic characteristics of a contract, a contract. The people's court according to the administrative contract set to rights and obligations through coordinated way to resolve the dispute.

F, other cases. In addition to the above case, can be applied also to reconciliation: group interests, need to cooperate with the government and relevant departments of the case; strong sensitivity, degree of social concern large case; no legal restrictions, do not violate the country, collective and social and public interests, the people refused to accept administrative violations of its property right and administrative lawsuits filed; the specific administrative act program has administrative litigation cases flaws; administrative litigation legal regulations or provisions are not clear or conflict.

2 Countermeasures of administrative litigation reconciliation

(1) although the reconciliation in administrative litigation has not been recognized in the aspect of legal system, but the work in accordance with the spirit of the party and the Supreme People's court working train of thought, its positive significance also admit of no doubt, so we must firmly establish the administrative proceedings reconciliation mechanism into the concept, the people's court administrative trial and each person in charge a judge in the face of the administrative trial work, must have "to mediate, when the adjudication, mediation and judgment, to conclude the case" concept, especially hard on the relationship between the people's livelihood, judgement could lead to social instability factors of the case, should as far as possible to facilitate settlement, safeguard the people the legitimate rights and interests, resolve social contradictions.

(2) the parties to bring an administrative lawsuit, the specific administrative act is often not only request to revoke the defendant, but hopes to achieve its realistic civil or other rights and interests through administrative litigation, therefore through coordination to meet the real demands the most administrative cases is the key of reconciliation. Due to the administrative organs in administrative litigation is of course the defendant, administrative adjudication is the concrete administrative behavior of the administrative organ for examination of objects, but in the reconciliation in administrative trial, the administrative organ resources advantage in the management field and strong coordination ability, is often the only proper course to take his original told Real goal. Therefore, the work of reconciliation in administrative litigation, especially may lead to instability of the case, as far as possible to rely on the leadership of the party and win the support of the government, the Party committee leading newspaper, put forward judicial proposals and other various flexible ways to the government, the relevant administrative organs to achieve the specific rights and interests legal, coordinating contributed to solving administrative dispute.

(3) of reconciliation in administrative litigation, the purpose is to conclude the case, resolve the contradictions between officials and people, therefore, the people's court shall grasp every opportunity to litigation reconciliation between the two parties, shall coordinate the work through the whole process of litigation, and different stages should adopt different ways to live according to the actual situation of the spirit. In case stage focus is possible the prosecution's mistake of law explanation, the trial is mainly aimed at the specific administrative acts being sued problems as far as possible to clarify the legal consequences that may exist, and facilitate the realization of the legitimate rights and interests. Even in the case of a sentence has the same chance of reconciliation, because the administrative case is concluded, the plaintiff may not realize the real purpose, often can form new litigation, legal interpretation to the losing of the plaintiff in this case, or to lose the accused to explain legal responsibility shall be borne by the losing after, there may be the plaintiff or the defendant to give up litigation actively perform their duties, the final actual case closed.

(4) according to China's "administrative procedure law" provisions, the administrative case to the administrative organ where the people's court for jurisdiction principle. In the trial practice, some courts according to law, independent and impartial hearing of local administrative organs especially the local government administrative cases for the defendant, often face a lot of pressure, this phenomenon is particularly prominent in the courts at the grassroots level. Therefore, the people's court in the process of reconciliation of administrative cases, there will be interference from different aspects, leading to coordinate the work can not be carried out smoothly, delay of cases. Faced with this problem, the designated jurisdiction strengthened administrative lawsuit, the exclusion of local interference, to promote reconciliation in administrative cases reached good effect. Therefore, the people's court through the development of appropriate institutional form, consciously relates to social stability, and is suitable for adopting administrative cases reconciliation settlement other designated court local court trial, the people's court may make relatively detached in coordinating the work, conducive to resolving disputes.

5 sharp tools make good work. In the coordination of administrative adjudication, the people's court must reflect the important role in the work of reconciliation, pay attention to skills, coordination, promote reconciliation. In the administrative relationship, between the administrative organ and the administrative relative person is a kind of management and obedience, the relationship between law enforcement and law-abiding, reflect the contradiction between public and private rights, public interest and private interest, restriction and freedom, specification and disorderly conflict, it is this status, rights and interests and behavior of asymmetry, the administrative dispute than the civil dispute contradiction sharper, more intense conflict, the society is more sensitive, also decided in administrative trial, the judge committed to reconciliation work, through the coordination of contradictions, resolve conflicts, promote harmony. The unique characteristics of administrative litigation, ask the judge to coordination, mediation method not only to absorb the civil disputes, and create a unique method is applied to resolve administrative dispute, should differ from man to man, and from case to case and different adopt different coordination methods. In the coordination process, the judge should also have a certain knowledge of psychology, have keen insight, be good at "running", "listen", through access to file material and the face to face contact, to try to figure out the litigation purpose and the mentality, "an antidote against the disease", targeted coordination. The parties expressed intention reconciliation, even the "moment", "instant" revelation, must seize this opportunity to "transient". "Caught", "have a definite object in view", will receive the "get", "natural" effect.

(6) in the current "administrative procedure law" regulation, the administrative cases reconciliation impossible with the implementation of legal instruments issued by force, so the reconciliation results and no compulsory execution as a backing, which caused the agreement of doubts, often come to a standstill in the reconciliation of the front door. Therefore, the contents of the settlement agreement can be recorded in the people's court records, and signed by all of the parties, the people's court in the record to confirm its legitimacy, but also must strengthen the supervision on the implementation of the settlement agreement, the administrative organ and the credibility of the commitment to ensure the people's court coordination authority. In general, a settlement in both parties, shall require the agreement first to fulfill its obligations, and then decide to withdraw the prosecution of the plaintiff. For the agreement only in the withdrawal to fulfill a case, the people's court shall perform the obligations to supervise, not because the end the case will not close, causing a new official civil disputes, damage the judicial authority. For not fulfilling the obligations of the administrative organs, can take to the authorities and the superior competent department send the judicial proposal form, to fulfil its commitment to maintain the credibility of the administrative organs.

(7) as the "administrative procedure law" on the prohibition of the mediation, the administrative proceedings reconciliation, the vast majority of the court ruled that closed form is taken granted the plaintiffs claim, while the case if the formal acceptance by the court before the reconciliation, even in the absence of an effective legal documents. This situation is projected onto the target evaluation on the performance of administrative cases and coordination, before receiving the imponderable workload, the withdrawal after reconciliation cases were not included in the rate of mediation. In fact, a lot of energy and time to coordinate the work of administrative litigation tend to consume the judge, and will endure all kinds of suspicion and pressure, and make the work can not be reflected in the target evaluation, also cannot pass through other ways approved, which greatly dampened the enthusiasm and the coordination of closed, is not conducive to the the long-term development. Therefore, to the people's court target appraisal methods should make certain modifications, as far as possible according to the particularity of administrative proceedings reconciliation, will coordinate the work is reflected in the specific target evaluation.

(8) to coordinate the work of administrative litigation settlement advantage or not, initiative, the judge is an important index, thus strengthening the team construction of administrative trial, complete with strong administrative judge is beneficial to the development of this work. The reconciliation of administrative litigation, must have the keen insight, rich social experience and communication skills, so the administrative judge in addition to excellent service quality, also have the ability to consciously, continue to accumulate experience, in the administrative proceedings reconciliation work in coordination to better play its role.

Notes.

(1) the members of the project group: Xie Shanghua Xie Lixin Zou Xueguang Chen YonghongShen JianQin Jiyou Ceng JianHe Lianjun Cao HongDeng Ci Liu Yuwan.

(2) Wang Xuehui: "comparative study" the system of administrative litigation, China prosecution publishing house, 2004 first edition.

(3) Fang Shirong: "research" concept and the function of the administrative relative person "administrative review", load volume third, ninetieth pages.

(4), Wang Zhenyu: "America Qingfeng observation system of judicial review". Load "administrative law enforcement and administrative trial" total fifth series, 256th pages.

(5) Cai Xiaoxue, Gan Wen ": comparison of British judicial review system and judicial review system of china". Load "administrative law enforcement and administrative trial" total fifth series, 238th pages.