行政争讼中的和解与调解

原则上,只要自愿且不违法,行政纠纷既可和解,也可调解。为预防贩卖公权侵害公益现象之发生,应当建立正式的公益诉讼制度;为防止行政主体利用其优势地位强迫相对人接受不平等条件甚至是霸王条款,原则上不应赋予行政主体强制执行和解协议的权力。违背自愿原则签订的和解协议,可以通过正式的行政争讼程序予以撤销;违背自愿原则或者合法原则而制定的调解书,可以通过审判监督程序予以撤销。

On Reconciliation and Mediation in Administrative Litigation

Administrative disputes can be resolved by both reconciliation and mediation, as long as the solution is agreed and lawful. Public interest litigation must be established to prevent violation public interests by public power. Meanwhile, administrative subjects should not be endowed with the power to execute an agreement so as to avoid that an administrative subject forces an individual to accept an unfair item or even overlord provisions. An agreement that violates the rule of consensus can be cancelled in an administrative litigation. Besides, if the same thing happens to a mediation agreement, it will be cancelled in a trial monitor program.