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我国《行政诉讼法》明文规定“不适用调解”。但在实践中,法院以行政诉讼法第51条为突破口,积极探索行政诉讼和解制度。不可否认,法院的制度创新事实上也较好地发挥了作用。但是,在实现行政诉讼和解目标期待的同时,其功能障碍同样不能忽视。故较为稳妥的办法是对行政诉讼和解制度和行政诉讼撤诉制度的功能重新定位,以行政诉讼法修改为契机正本清源。
China’s “Administrative Procedure Law,” expressly provides “not applicable to mediation.” However, in practice, the court, taking Article 51 of the Administrative Procedure Law as a breakthrough, actively explores the system of reconciliation in administrative litigation. It is undeniable that the institutional innovation of the courts has in fact played a better role. However, while realizing the expectations of reconciliation in administrative litigation, the same can not be ignored. Therefore, a more secure approach is to re-position the system of reconciliation of administrative proceedings and the system of withdrawal of administrative proceedings, with the original amendment of Administrative Procedure Law as an opportunity.