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在行政审判实践中,对可能要判决撤销或变更被诉具体行政行为或者是判决被告履行职责的案件,许多法院都会向被告指出其行为违法之所在,说服其依法自行纠正自己的行为,然后再对原告作解释、说服的工作,促成以被告撤销、变更或作出行政行为、原告撤诉而告结案,这与民事审判的调解性质一致。从而使《行政诉讼法》第五十条规定的“人民法院审理行政案件,不适用调解”受到了极大挑战。实践也证明调解在行政审判中的作用,它能将法律效果与社会效果达到最大的统一。因此,笔者主张对可能要被判决撤销或变更被诉具体行政行为或者是判决被告履行职责的这部分案件,应当允许进行调解。
In the practice of administrative adjudication, in cases where verdicts may be adjudicated to be revoked or changed or the defendant’s performance of his duties may be adjudicated, many courts will point out to defendants where their conduct is unlawful and persuade them to correct their acts in accordance with the law before The explanation and persuasion of the plaintiff contributed to the case that the defendant withdrawn, changed or made an administrative act and the plaintiff dismissed the complaint, which is consistent with the nature of the mediation in civil trial. As a result, Article 50 of the Administrative Procedure Law stipulates that “the people’s courts should not be subject to administrative mediation in mediation cases.” Practice also proves the role of mediation in administrative adjudication. It can maximize the unity of legal and social effects. Therefore, the author advocates the mediation should be allowed for the part of the cases that may have to be adjudicated to cancel or change the specific administrative act of the accused or to adjudicate the defendant’s performance of his duties.