Please use this identifier to cite or link to this item:
A Further Study on the Functions of Judicial Power in a Changing Image of a Rule-of-law Nation: A Study on the Institution of Court Mediation in Germany’s Administrative Proceedings
Multi-Door-Courthouse;Rechtsstaatsleitbild;Gedanke des Kooperationsstaates;alternative dispute resolution;Court Mediation in administrative proceedings
|Issue Date: ||2017-11-07 10:45:49 (UTC+8)|
In February, 2000, at the annual meeting of Germany’s Judges Association held in Trier, the topic of ＂the Mediation and Administrative Proceedings＂ was presented and discussed in order to understand whether the institution of court mediation (＂Court Mediation＂) can be practicable in administrative proceedings. At that meeting a resolution was made that two administrative courts in Freiburg and Berlin would run Court Mediation experimentally. The theoretical foundation of Court Mediation is derived from the concept of the Multi-Door-Courthouse formed and developed in the United States since the 1970s. Such a concept contends that a nation (and its government) should positively provide more types of me chanisms as an alternative dispute resolution (＂ADR＂) which can be used by its people. The concept emphasizes that ADR can replace traditional litigations, because parties may have incentives to reach an agreement getting a win-win situation in order to avoid unpredictable, and usually zero-sum litigation results. As a matter of fact, the institution of mediation has existed in judicial proceedings for a long time, especially in civil proceedings. In Germany, many disputes concerning domestic relationships were solved through mediation. In administrative proceedings, however, mediation should be a wholly new idea. Since the 1980s, the role of the nation (and its government) has been changed with more expectations among its people calling for more public services. Under the influence of New Public Management, the traditional Image of Rule-of-law Nation has fundamentally changed. A nation never monopolizes all powers for dispute resolution, but should offer a variety of mechanisms utilized by its people if they think such a mechanism fits their benefits. Courts shall not only adjudicate cases but also offer more ADRs for usage for the people. Thus, in addition to traditional settlements, a topic whether to create other ADRs (especially Court Mediation) has been hotly discussed. In June, 2012, Germany’s Parliament (Der Deutsche Bundestag) passed an amendment to Article 173 of Administrative Court Act. The amendment introduced Court Mediation into administrative proceedings, from what was originally provided in Paragraph 5, Article 278 of the Code of Civil Proceedings. Such an amendment was promulgated on July 25, 2012 by the German President providing a statutory basis for Court Mediation in administrative proceedings. Since then, Court Mediation has officially become a regular procedure instead of an experimental procedure. However, some questions have been raised since Court Mediation was initially introduced more than 10 years ago. How does it function? What is its precise definition? Compared with other institutions, what different characteristics does it have? What is the procedure in Court Mediation? This study is expected to have a comprehensive study on Germany’s Court Mediation for references for academics and practice in administrative proceedings.
|Relation: ||政大法學評論, 142, 345-390|
|Data Type: ||article|
|DOI 連結: ||http://dx.doi.org/10.3966/102398202015090142006|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
Files in This Item:
All items in 政大典藏 are protected by copyright, with all rights reserved.