论我国行政诉讼调解的正当性构建

传统行政法理论中,"公权力不可处分"等观点否定行政诉讼适用调解。受此影响,我国法律规定行政诉讼不适用调解。但行政审判实践中,以"协调"、"和解"等形式变通适用调解的做法一直存在。这一矛盾根源在于将"公权力不可处分"、"当事人法律地位不平等"等学说的绝对化。行政裁量权的广泛存在和契约行政的渐成趋势,使行政诉讼中调解制度的建立具有了充分的正当性。但同时,行政裁量权的有限性和契约行政的局限性,又决定了行政诉讼中的调解应当是一种有限的调解。

On Legitimacy Construction of Administrative Litigation Mediation in China

In the traditional administrative law theory, opinions, such as public power excluding punishment, deny the application of mediation to the administrative litigation and so is written in China’s laws correspondingly. However in the practice, similar systems of coordination and reconciliation exist for years. It is held by this paper that the root of such conflict is the absolute understanding of opinions such as public power excluding punishment and unequal legal status of the parties. And the wide existence of the administrative discretion right and the growing tendency of contract administration stimulate sufficient legitimacy foundation for the establishment of the mediation system in administrative litigations. Meanwhile, the limitation feature of administrative discretion right and contract administration still restricts such mediation to a type of limited mediation.