Mediation refers to the activities that the two parties to a dispute conduct ideological mediation and education through a third party under the auspices of a third party in accordance with the provisions of laws and policies, so as to promote mutual consultation, mutual understanding and mutual accommodation, and reach an agreement voluntarily according to law, thus solving disputes. According to the law of our country, administrative mediation is the mediation of specific civil disputes and minor criminal cases by the state administrative organs within their administrative functions and powers. The scope of mediation includes civil disputes, economic disputes and minor criminal disputes.
In China, a populous country, with the constant change of social life and the continuous development of economic exchanges, a large number of civil and economic disputes conform to objective laws. How to solve these contradictions and disputes and promote social development is a category that we should think about. According to China's existing laws, China's mediation system includes three major mediation systems: court mediation, people's mediation and administrative mediation. In addition, there are arbitration mediation and lawyer mediation. These mediations have both connections and differences, which constitute a complete mediation system in China. The legal effect of court mediation and people's mediation is very clear, so this paper will not study it. I just want to make a superficial understanding of the legal effect of administrative mediation in order to attract more attention and contribute to the administrative mediation work in China.
Second, the nature and role of administrative mediation
Compared with court mediation, administrative mediation, like people's mediation, belongs to non-litigation mediation, and the agreement reached is not legally binding, but it should be binding on the parties. Because administrative mediation, like people's mediation, is a voluntary mediation activity, according to the existing law, the parties should consciously fulfill the agreement reached. Therefore, it can be said that the agreement reached by administrative mediation should still be as binding on the parties as the agreement reached by people's mediation.
In China, since the new democratic revolution, the grassroots people in all revolutionary base areas have the responsibility to mediate civil disputes and minor criminal cases. After the founding of People's Republic of China (PRC), administrative mediation gradually developed into various forms. In addition to grass-roots mediation in general civil disputes and minor criminal cases, the law also stipulates that some state administrative organs are responsible for mediating specific civil disputes and economic disputes. The functions of China's administrative organs are mainly embodied in two major functions: administrative management and administrative law enforcement. Administrative mediation is a way for state administrative organs to manage and supervise economic activities and social life. It can not only mediate disputes between citizens, but also mediate disputes between citizens and legal persons, legal persons and legal persons about rights and obligations. This is an important feature different from people's mediation. Over the years, China's administrative organs have handled a large number of economic disputes and civil disputes through mediation. Many disputes resolved through mediation are consciously performed by both parties and rarely resolved through litigation. It can be said that administrative mediation has played an important role in protecting the legitimate rights and interests of citizens, legal persons and other organizations from infringement, adjusting economic and social relations, maintaining social stability and promoting socialist economic construction.
Third, the types of administrative mediation.
At present, there are many kinds of mediation that our administrative organs can carry out according to law. It can be said that administrative organs can basically mediate disputes in the process of exercising administrative functions. However, administrative mediation mainly refers to the following categories: (1) grassroots people's mediation. Mediation of civil disputes and minor criminal cases has always been the responsibility of grassroots people in China, mainly carried out by judicial assistants of township people and sub-district offices. Judicial assistants are members of the grassroots and judicial administrative personnel. In addition to guiding the work of people's mediation committees and legal publicity, they also mediate a large number of disputes in person. (two) the mediation of the state contract management authority. China's "Contract Law" stipulates that when there is a dispute over a contract, the parties may agree to arbitrate or bring a suit in a people's court. The contract management organs stipulated by the state are the State Administration for Industry and Commerce and the local administrations for industry and commerce at all levels. Economic disputes between legal persons, individual industrial and commercial households, citizens and legal persons may apply to the administrative department for industry and commerce for mediation. (3) Mediation by public security organs. China's "Regulations on Public Security Punishment" stipulates that public security organs can mediate and deal with acts that violate public security management, such as fighting and damage to other people's property caused by civil disputes, if the circumstances are minor. Article 30 of China's Measures for Handling Road Traffic Accidents stipulates that when handling traffic accidents, public security organs shall find out the causes of traffic accidents and identify the traffic. & gt
Question 2: Can administrative mediation mediate administrative disputes? If you refuse to accept the administrative mediation, you can apply for reconsideration or bring an administrative lawsuit. Your question is unclear. Please send me the specific legal questions. (four) the administrative organ refuses to issue or reply to the license application and the license issued by the administrative organ that meet the statutory conditions; (five) the application for administrative organs to perform the statutory duties of protecting personal rights and property rights, and the administrative organs refuse to perform or refuse to reply; (eight) that the administrative organ violates other personal rights and property rights. In addition to the provisions of the preceding paragraph, the people's courts accept other administrative cases that can be brought to court according to laws and regulations. Under any of the following circumstances, the administrative reconsideration organ may mediate in accordance with the principle of voluntariness and legality: (2) Administrative compensation or administrative compensation disputes between the parties. If the parties reach an agreement through mediation, the administrative reconsideration organ shall make a conciliation statement for administrative reconsideration. The conciliation statement shall contain the request for administrative reconsideration, facts, reasons and conciliation results, and shall be stamped with the seal of the administrative reconsideration organ. The conciliation statement of administrative reconsideration shall have legal effect after being signed by both parties. If the mediation fails to reach an agreement or one party reneges before the mediation takes effect, the administrative reconsideration organ shall make an administrative reconsideration decision in time. Article 50 of the Regulations on the Implementation of the Administrative Reconsideration Law stipulates the situations that the administrative reconsideration organ can mediate. Article 67 of the Administrative Procedure Law stipulates that "if a citizen, a legal person or any other organization makes a separate claim for damages, the administrative organ shall handle it first." Article 13 of the State Compensation Law "The organ liable for compensation shall make a decision on whether to pay compensation within two months from the date of receiving the application. When making a compensation decision, the organ liable for compensation shall fully listen to the opinions of the claimant, and may negotiate with the claimant on the compensation method, compensation items and compensation amount in accordance with the provisions of Chapter IV of this Law. " Article 25 of the Outline for the Implementation of Comprehensively Promoting Administration by Law in the State Council also has requirements. Administrative mediation means that the state administrative organ persuades and educates patiently the civil disputes within the jurisdiction of the state administrative organ according to law, so that the two parties to the dispute can understand each other and reach an agreement on the basis of equal consultation, so as to solve the disputes reasonably and thoroughly. (1) grassroots mediation. Mediation of civil disputes and minor criminal cases has always been the responsibility of grass-roots people in China, mainly carried out by township people and judicial assistants in sub-district offices. Judicial assistants are members of the grassroots and judicial administrative personnel. In addition to guiding the work of people's mediation committees and legal publicity, they also mediate a large number of disputes in person. (two) the mediation of the state contract management authority. China's "Contract Law" stipulates that when there is a dispute over a contract, the parties may agree to arbitrate or bring a suit in a people's court. The contract management organs stipulated by the state are the State Administration for Industry and Commerce and the local administrations for industry and commerce at all levels. Economic disputes between legal persons, individual industrial and commercial households, citizens and legal persons may apply to the administrative department for industry and commerce for mediation. (3) Mediation by public security organs. The Law of People's Republic of China (PRC) on Public Security Administration Punishment stipulates that the public security organs can mediate and handle acts that violate public security administration, such as fighting and damaging other people's property, which are caused by civil disputes. China's "Measures for Handling Road Traffic Accidents" stipulates in Article 30 that the public security organ shall organize the parties and relevant personnel to mediate the damage after finding out the cause of the traffic accident, determining the responsibility for the traffic accident and determining the loss of the traffic accident. This is the right given by laws and regulations to the public security organs to mediate, which is conducive to properly solving disputes and enhancing the unity between the parties. (4) Mediation by the marriage registration authority. China's Marriage Law stipulates that if a man or a woman files for divorce, the relevant departments can mediate or directly file a divorce lawsuit with the people's court. At the same time, the law stipulates that if both men and women divorce voluntarily, they should apply to the marriage registration authority at the same time. Therefore, the marriage registration authority can also mediate the marriage parties, which is conducive to the normal development of marriage and family. Administrative mediation is a method for state administrative organs to deal with administrative disputes. According to the law, the state administrative organ persuades and educates the administrative disputes within the jurisdiction of the state administrative organ patiently, so that the disputing parties can understand each other on the basis of equal consultation and reach an agreement, thus solving the disputes reasonably and thoroughly. People's mediation is also called mediation outside litigation. It refers to the activities of mediating and persuading the parties to civil disputes under the auspices of the people's mediation committee in accordance with national laws, regulations, rules and social ethics, so as to promote mutual understanding, equal consultation, voluntary agreement and dispute resolution. Judicial mediation is also called litigation ... >>
Question 3: Do administrative mediation and administrative mediation mean the same thing? No, mediation is to deal with it accordingly, and mediation is only to resolve contradictions.
Question 4: Is mediation a specific administrative act? Hello! Mediation can be conducted in the following nine situations: 1. If the administrative act is illegal or improper, the defendant may change or cancel the original administrative act on his own.
Question 5: What is the administrative mediation system? Administrative mediation system refers to the legal system that the administrative subject solves social disputes through non-litigation procedures according to the application or authority, and it is the general name of various administrative dispute resolution mechanisms.
Administrative mediation is a concept that has not been fully defined. In academic circles, the term "administrative mediation" rarely appears, let alone its definition. It is not easy to define a practical concept that lacks definition and is not fully formed in law. However, "the primary use of language lies in the correct definition of nouns;" ..... The biggest abuse of language lies in the wrong definition or no definition. " [5] The definition of administrative mediation is to reveal its connotation and essential attributes in a simple and clear logical way.
First of all, in nature, administrative mediation is a non-litigation dispute resolution mechanism. The so-called non-litigation dispute resolution mechanism refers to the general name of the methods to solve disputes without formal trial procedures [6]. Administrative mediation is a process in which the administrative subject solves disputes as an independent and detached third person. Administrative mediation introduces litigation procedure to a certain extent, which has strong judicial characteristics and can be regarded as a quasi-judicial act. However, it cannot be considered that administrative mediation is a judicial act, whether it is entrusted justice [7] or administrative justice [8]. Because although some judicial mechanisms have been introduced into the application procedure of administrative mediation, compared with judicial procedures, these mechanisms are relatively flexible, simple, low-cost and pay more attention to efficiency. Different from judicial action, it must strictly follow the principle of "no complaint and no attention", and the administrative subject can start the mediation procedure either at the request of the parties or ex officio. Moreover, administrative mediation is generally not final. This kind of non-litigation procedure fundamentally belongs to the category of administrative procedure. At the same time, administrative mediation "has no wider jurisdiction over civil disputes than the courts." Usually those disputes that are closely related to administrative activities or are really difficult and inconvenient to be tried by the court, the state authorizes the corresponding administrative organs to make judgments through laws and regulations "[9].
Secondly, administrative mediation is a legal act and legal system for administrative subjects to solve social disputes. In China, there are three main systems to mediate social disputes: social mediation, judicial mediation and administrative mediation. The fundamental difference between administrative mediation and the former two is that the mediation subject is the administrative subject. Only the behavior of administrative subject using administrative authority to solve social disputes is administrative mediation. In China, administrative subjects mainly include administrative organs and organizations authorized by laws and regulations. All acts of mediating social disputes in the name of administrative organs should belong to the category of administrative mediation, because administrative organs will use administrative power to mediate in tangible or intangible ways. However, organizations authorized by laws and regulations to mediate social disputes only belong to the category of administrative mediation, otherwise they belong to social mediation. In addition, "in China, almost no one does not belong to a certain unit, department or community ... When there is a civil conflict between members of a certain unit, department or community, their leaders often have to come forward to do' persuasion work' in order to stabilize the morale of the army and unite colleagues, and this persuasion is different from the persuasion of ordinary third parties because it has the tangible or intangible color of administrative authority." [1 1] Although this dispute resolution mechanism has some administrative overtones, it does not belong to the category of administrative mediation, but a way to resolve disputes within units, departments or communities, and belongs to the category of social mediation.
Thirdly, administrative mediation is an institutional system composed of various administrative dispute resolution mechanisms. "All kinds of dispute resolution methods and social sanctions in any culture convey people's favorite ideals, express people's views on themselves, and also reflect the quality of their relationship with others. They show whether people want to avoid or encourage conflicts, whether to suppress or resolve conflicts gently. " In the social transformation, the causes of disputes are complicated. This complexity will inevitably lead to the objective demand for diversification of administrative dispute resolution mechanism. * * *, administrative appeal, administrative mediation, administrative arbitration, administrative adjudication and administrative reconsideration all belong to the scope of administrative dispute resolution mechanism. Administrative mediation is not at the same level as the specific settlement mechanism of disputes such as * * *, administrative appeal, administrative mediation, administrative arbitration, administrative ruling and administrative reconsideration. Administrative mediation is the general name of various mechanisms for administrative subjects to solve social disputes.
Question 6: Mediation is not applicable to the people's courts in trying administrative cases, is it? Mediation is not applicable to the trial of administrative cases by people's courts. However, mediation can be conducted in cases where administrative compensation and compensation are stipulated by laws and regulations and administrative organs exercise discretion. Mediation shall follow the principle of voluntariness and legality, and shall not harm the national interests, social public interests and the legitimate rights and interests of others.
Relevant laws and regulations: Administrative Procedure Law of the People's Republic of China
Article 60 Mediation is not applicable to the people's courts in trying administrative cases. However, mediation can be conducted in cases where administrative compensation and compensation are stipulated by laws and regulations and administrative organs exercise discretion.
Mediation shall follow the principle of voluntariness and legality, and shall not harm the national interests, social public interests and the legitimate rights and interests of others.
Question 7: Should the principle of mediation be established in administrative litigation? The basic principles of administrative litigation mediation refer to the basic principles that embody the guiding ideology of administrative litigation mediation and run through administrative litigation mediation activities to regulate and guide the litigation behavior of legal subjects in administrative litigation mediation. As a part of administrative litigation, the principle of mediation in administrative litigation must be incorporated into the principle of administrative litigation and follow the principle that people's courts exercise judicial power independently; The principle of taking facts as the basis and law as the criterion; Mediation in administrative litigation follows the principles of collegiate bench, avoidance, public hearing and final adjudication of second instance. However, in the process of implementation, there are specific subdivision principles:
(1) Voluntary principle
Voluntary principle is the first and basic principle of administrative litigation mediation. Since it is mediation, the people's court should fully respect the wishes of the parties. The key to mediation is that the parties reach an agreement voluntarily. Only voluntary agreement can promote real reconciliation. The plaintiff in administrative litigation is the managed person, the heir to the pre-litigation administrative act, and is not voluntary. As the implementer of administrative acts, the power of administrative organs is legal and can be used repeatedly. The enforceability of administrative actions and the persistence of rights influence determine that the plaintiff is obviously in an extremely weak position before litigation. However, administrative litigation has changed this state, giving both parties an equal opportunity, and this change of status is based on voluntariness.
In judicial practice, the phenomena of "promoting mediation by pressure", "promoting mediation by inducement" and "slowing mediation by pressure" all violate the principle of voluntariness. Mediation cannot be forced, it should not only reflect the wishes of both sides, but also consider whether the inner expressions of both sides are true or not. In the mediation of administrative cases, attention should be paid to the clear, direct and voluntary expression of the will of both parties, and the agreement reached through mediation must reflect the true meaning of both parties.
(2) the principle of legality
The essence of administrative litigation is administrative relief, which protects the legitimate rights and interests of citizens, legal persons and other organizations by supervising administrative organs to administer according to law. The principle of legality requires the people's court to follow legal procedures when presiding over mediation, so as to make the procedures legal. In fact, the formed mediation agreement cannot violate the national laws and regulations. Specifically, this principle should include the following two aspects: First, the procedures of mediation activities of the people's courts should be legal. Because the mediation system of civil cases, criminal private prosecution cases and administrative compensation cases is stipulated by law, these provide a good example for administrative litigation mediation. The mediation procedure in administrative litigation can be compared and used for reference with the above mediation procedure. Second, the contents of the mediation agreement of the people's court shall not violate national laws and regulations, and shall not harm the national interests, social public interests and the legitimate rights and interests of others. The administrative organ has a certain range of discretion, allowing it to enjoy the punishment of substantive power according to the specific situation within the statutory scope. Administrative organs can only be effective if they revoke or change administrative acts within their statutory functions and powers.
(3) the principle of priority of plaintiff's interests
Based on the respect for administrative actions and the protection of the interests of the administrative counterpart, combined with the theory of the balance of rights in the administrative procedure law and the cognition of protecting the interests of the vulnerable parties to the maximum extent, administrative litigation mediation should give priority to protecting the legitimate rights and interests of the plaintiff when the defendant can make concessions. This will help to improve the level of administrative law enforcement and promote social harmony.
(d) the principle of limited mediation
Administrative litigation is different from civil litigation, so it is impossible to implement a complete civil litigation mediation system. Due to various constraints, only a limited mediation system can be implemented, that is, the administrative litigation cases to which the mediation system applies are limited to a certain range.
Question 8: What does it mean that the principle of mediation does not apply to administrative litigation? Because administrative actions are generally violations of the private rights of citizens or legal persons by state actions, this directly leads to the inapplicability of mediation in administrative litigation for two reasons:
1, the legality of state behavior can only be determined by the court through trial, and no one is allowed to determine it through consultation;
2. The premise of mediation is that the parties have the right to dispose; As a party, the right of the administrative organ to exercise its functions and powers is stipulated by law, and the administrative organ has no right to dispose of this right.
Question 9: Significance and function of macro-control. Macro-control is the overall control of a country's central government on the development of national economy and the operation of market economy, and it is also the adjustment and control of macro-economy. There are many means of macro-control, which can be summarized into five aspects: planning guidance, policy regulation, legal norms, information guidance and administrative intervention. Details are as follows: 1. Planning refers to a planning system composed of national and local levels, different levels of departments, different professional fields and different planning objects. For example, the tenth five-year plan is the highest-level plan. The rest of the plan must be based on this plan. 2. Policy is also a big system, including fiscal policy, monetary policy, industrial policy, investment policy, consumption policy, circulation policy, distribution policy, price policy and so on. I won't elaborate on the law. You can understand when you mention it. Like the recently promulgated circular production law, it is a law to promote the utilization of renewable resources and protect the environment. It is self-evident that it plays a guiding role in macro-economy. 4. Information orientation. It is mainly to establish an economic information system that is open to the whole country. By regularly or irregularly releasing economic operation and forecast information, it will provide necessary information guidance for producers and operators throughout the country and improve the blindness of economic operation. 5.* * * Administrative intervention is a super-economic administrative coercive way. For the market economy system, the less the better. But it is necessary. Its function is mainly under some special circumstances, such as the Wenchuan earthquake last year. If * * * does not use super-economic means (of course, within the scope permitted by law), the situation may be more serious. The application of the above means must be comprehensively considered, and the appropriate combination should be selected according to the economic operation, so that the control direction of all means is consistent, the control measures are reasonable and the control intensity is appropriate. Because the object of macro-control is the macro-economy, the combination of the above means is to make the macro-economy run in the direction planned by the central government. China's central macro-control objectives mainly include the following aspects: 1, promoting steady and rapid economic growth. (note that this growth is the unity of quantity and quality, and it should be stable and not ups and downs. ) 2. Fully increase employment (High unemployment rate means great waste of labor. Labor is the most precious of all resources and must be fully utilized. Moreover, employment is the foundation of people's livelihood. High unemployment will lead to a series of social problems. 3. Keep prices relatively stable. This is also a big issue related to people's livelihood. Achieve balance of payments. Balance of payments refers to intermediate balance. At present, the current account of China's balance of payments is seriously unbalanced, that is, we often say that the import and export trade surplus is large, with foreign exchange reserves reaching several trillion dollars, and foreign countries (our international trading partners) have great opinions. Others are unwilling to do business with you if they suffer. It will eventually have a negative impact on our economy. However, China's capital account is in deficit. In other words, foreign investors bring more money into China, while our overseas investors take less money out. This can offset some of it. But it's still unbalanced. As long as the macro-control measures are: 1, the total economic balance will be maintained (the total supply and total demand are basically balanced, the balance of payments is basically balanced, and the RMB exchange rate is basically stable). 2. Promote economic structure optimization. 3. Provide macroeconomic benefits. 4. Realize the organic combination of efficiency and fairness.