法治國圖像變遷下司法權功能之再探討——德國行政訴訟中法官調解制度之研究

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

二○○○年二月，德國法官學會以「調解與行政訴訟程序」為題，在Trier召開年會，研究法官調解制度在行政訴訟程序中適用之可行性。該次會議中決議：於Freiburg和Berlin之行政法院試辦法官調解。
二○一二年六月，德國聯邦眾議院通過行政法院法第一七三條修正案，賦予行政訴訟中法官調解制度實證法之依據。至此，行政訴訟中法官調解正式從試辦程序成為常備程序。
德國行政訴訟中法官調解制度自二○○○年試辦至今，已逾十年，其成效如何？又所謂行政訴訟中法官調解，應如何精確定義？與其他制度有何區別？調解程序之內容如何？本文擬探討彼邦此一制度之內容，以供我國行政訴訟學說及實務參考。

In February, 2000, at the annual meeting of Germany’s Judges As-sociation 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 mechanisms as an alternative dispute resolution (“ADR”) which can be used by its people. The concept emphasizes that ADR can replace tradi-tional 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 judi-cial 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 dis-pute 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 dis-cussed.
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 ex-perimental 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.