我国行政诉讼调解制度法理基础新构

随着行政诉讼实践面临新问题的不断出现,现行行政诉讼不适用调解的规定日益引起理论界与实务界的争论与探讨。我国行政诉讼不适用调解的传统观点其在理论上先天性不足,不能作为反对行政诉讼适用调解的理论根据。我国行政诉讼调解制度的新法理基础应该包括:权利自治、经济效率、自由裁量和交往理性,并坚持下述限制:1.主体的有限性;2.诉讼标的有限性;3.协议内容的有限性。

New Construction on the Legal Base of Mediation of Administrative Litigation in China

With the new problems arsing in the administrative practice,mediation which isn't applicable to administrative litigation arouses debates and reaserches in China.The viewpoint that mediation doesn't applicable to China administrative litigation has defects inborn in theory,and which can't be accepted as the theoretical foundation.The new legal base of mediation of China administrative litigation should include automony of right,economy,efficiency,discretion,and the sense of association,likewise,which should be limited to subject,target of litigation,and the contents of agreement.