试论行政诉讼和解制度

审判实践中,人民法院以“协调”方式处理行政案件的现象大量存在。国外行政诉讼和解制度的存在,也说明行政诉讼与和解制度并非是绝然排斥的。行政诉讼和解制度的成立有其正当性基础,实践中事实存在的“和解”应予承认并进行规范。行政诉讼和解的主体必须包含原、被告,和解须在判决确定前进行,并须经人民法院审查确认。和解当事人就和解事项应具有处分权,和解协议应不违法。有效成立的诉讼和解具有确定力、形成力和执行力。

On System of Compromise in Administrative Litigation

In trial practice, many administrative cases are dealt with through conciliation by the people's court, which shows that administrative litigation is not exclusive from compromise system. The system of compromise in administrative litigation has its legitimate base, and we should admit and regulate these factual compromise. The plaintiff and the defendant should be included in compromise, and the compromise should be conducted before the judgment is made and it should be examined and affirmed by the people's court. The parties to the compromise should have the right of disposition, and the compromise agreement should be legitimate. The effective compromise should have determination force, formation force and enforcement force.