조정제도에 관한 행정법적 쟁점

Mediation is a type of ADR(Alternative Dispute Resolution,) together with negotiation, conciliation, arbitration, etc. Controversy arises as to whether mediation is familiar in the administrative law relations where the rule of law is applied. Mediation in the administrative law area is different from the conciliation in civil relations in the aspect of involving a conversion task. To say, when mediation is successfully made, the concerned parties are obliged to perform the negotiated agreements according to the separate measures given by the administrative agency. In the aspect of constitutional discussion as a prior cosideration, mediation is understood to be judicial administration rather than jurisdiction. Also reviewed was whether the issue of introducing the necessary prepositionalism of mediation in small claims cases and the issue of recognizing the effect of judicial reconciliation among administrative mediations are in violation of the constitutional right to claim a trial. Concerning the administrative law issues, first of all the relationship between the specificity of mediation in the administrative law, the rule of law were considered, and then mediation in administrative adjudication and mediation in administrative litigation were reviewed separately. The mediation system has been introduced and operated since 2018 under the Administrative Adjudication Act, but the current status of operation, problems and improvement tasks were reviewed. In relation to mediation under the Administrative Litigation Act, mediation is tried in fact in administrative litigations, and also the introduction of a reconciliation recommendation decision system was discussed in the Administrative Litigation Act proposed by the Ministry of Justice for amendment. It is necessary to critically consider the problems of the reconciliation recommendation system included in the amended Administrative Litigation Act and to examine the direction of introducing the mediation system as an alternative. Judicial distrust in administrative litigation is growing today, and it is necessary to seek legislative improvement directions regarding the mediation system, a type of ADR, to resolve conflicts in the public domain. In conclusion, it is hoped that the era of mediation may come in which administrative law disputes and conflicts are amicably resolved by a trusted neutral third party.