행정소송에서 조정제도 도입방향

Abstract

The so-called de facto mediation or reconciliation has been in use in the administrative courts for more than 20 years. De facto mediation or reconciliation is similar to the recommendation for reconciliation in that it does not go through a formal mediation procedure. It is also similar to the decision in lieu of conciliation in that it is recommended by the court. But it differs from either of the two, as the consensus between the parties is not officially documented. Attempts to revise the Administrative Litigation Act concerned only the introduction of the recommendation for reconciliation. However, as the need for amicable dispute resolution without trial by a court is also dire for administrative disputes, especially concerning the appeal litigation, it is necessary to discuss, in earnest, the introduction of a mediation system that formalizes the mediation process in the disputes concerning administrative matters. The principle of legality or the rule of law is not for itself an element that blocks the possibility of mediation in administrative disputes. However, it is necessary to design a mediation system that can harmonize amicable and effective dispute resolution and the legality and legal stability of the relations concerning administrative matters. Mediation does not aim to determine rights and wrongs between the parties, nor does it rely on strict fact-finding and legal judgment. It bases itself on an agreement between the parties, which serves as a ground for easing the principle of legality. In this regard, this paper suggests the following as limits to the content of mediation: no manifest illegality or a clear violation of the law; no inconsistency with public order or public welfare; no infringements on a third party’s legitimate interests. Also discussed are the effects of mediation, retrial against mediation, and the pros and cons of adding a consent of a third party or relevant agency as an additional requirement for mediation. Lastly, this paper favors adopting all types of mediators as those provided in the Civil Conciliation Act. As a supportive measure, it suggests setting higher qualification for mediators in order to guarantee the fairness and legitimacy of mediation.