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受传统行政法理论中“公权力不可处分”等观点的影响,行政诉讼法明文规定,人民法院审理行政案件,不适用调解。但行政审判实践中,以“协调”“、和解”等形式进行变相的调解一直存在。这种变相的调解背离了法律,最高法院出台的促进“协调”、“和解”的司法政策也有违法治的要求,要解决行政诉讼调解实践与现行法律规定的疏离以及司法政策所处的困境,就应顺应司法实践的需要,从立法层面建立和谐统一的行政诉讼调解制度,并在行政诉讼法中对调解的原则、程序等作出具体规定。
By the traditional administrative law theory “public power can not be punished ” and other points of view, the Administrative Procedure Law expressly provides that the people’s court to hear administrative cases do not apply mediation. However, mediation in disguised forms such as “coordination”, “reconciliation”, etc. has always existed in administrative trial practice. This disguised form of mediation has deviated from the law. The Supreme People’s Court has also introduced judicial measures to promote “coordination” and “reconciliation.” There is also a requirement that law be ruled by law. To resolve the alienation of administrative lawsuit mediation from the existing legal provisions and judicial policies At the same time, it is necessary to conform to the needs of judicial practice and establish a harmonious and unified administrative litigation mediation system from the legislative level. And the administrative litigation law stipulates the principles and procedures of mediation.