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.
Intermediary type
As a legal term, mediation includes three types of mediation, namely, civil mediation, administrative mediation and court mediation.
The Central Committee of the Communist Party of China's Decision on Several Major Issues in Building a Harmonious Socialist Society points out that it is necessary to "improve the system of investigation and mediation of contradictions and disputes, establish a mechanism for safeguarding the rights and interests of the masses led by the party and the government, realize the organic combination of people's mediation, administrative mediation and judicial mediation, and resolve contradictions at the grassroots level and solve them in the bud". The reason why administrative mediation can become an important way and means to build a harmonious socialist society is that administrative mediation has achieved harmony in three dimensions: harmony between the parties, harmony between the administrative organ and the relative person; Harmony between abiding by the law and supervising law enforcement; The existence of administrative mediation system ensures the internal harmony of social conflict resolution mechanism system. In a word, administrative mediation is an all-round "three harmonies".
Types of administrative mediation
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) mediation by grassroots people's governments. Mediation of civil disputes and minor criminal cases has always been a duty of the grass-roots people's government in China, which is mainly carried out by judicial assistants of township people's governments and sub-district offices. (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.
function
Resolve conflicts (between them)
First of all, administrative mediation solves the contradictions between the parties in a fast, cheap and respectful way.
(1) Compared with court proceedings, administrative mediation does not need complicated procedures, and it is immediate and efficient regardless of whether an agreement is reached.
Seminar on administrative mediation
(2) Compared with court litigation, administrative mediation, as the embodiment of government service function, the overall cost of the parties is far lower than the relatively high litigation cost and high lawyer's agency fee of the court. Considering the costs and benefits, the parties naturally prefer to choose low-cost administrative mediation to solve disputes.
(3) Administrative mediation respects the autonomy of the parties and takes the participation of the parties as a necessary condition, which will not only help the parties understand the law, but also help reduce the cost of law enforcement in the future.
At the same time, the contents, methods and results of administrative mediation should be based on legality. And the law-as Marx said-even the king can't give orders to economic laws-is the embodiment and guarantee of a harmonious society in the ultimate sense. Therefore, the process of administrative mediation, as a process of law implementation, is also a harmonious process implied and pursued by the law itself.
Achieve harmony
Secondly, administrative mediation is conducive to the realization of harmony between administrative organs and private parties.
(1) Administrative mediation is produced on the basis of democratic consultation and the willingness of the parties, which embodies the organic combination of democratic management and the voluntary principle of the parties exercising the right of disposition independently, and can also play the same role as compulsory administrative acts.
(2) Through patient, meticulous, comprehensive and concrete mediation, we can cultivate the work style of the staff of the administrative organs, establish a good working image of the administrative organs, and carry forward the spirit of serving the people, thus enhancing the people's trust in the administrative organs, improving the law enforcement authority of the administrative organs, and further establishing a close, harmonious, coordinated and mutual trust relationship between the people and the government.
(3) Administrative mediation bases the expression of the independent will of the parties on the authority obedience and trust established by the correct law enforcement of the administrative organs, so that the parties can voluntarily listen to the correct and beneficial persuasion of the administrative organs, resolve disputes and resolve contradictions. In this way, it is different from the passive administrative act of maintaining order according to law, because it not only solves the problem of minimum requirements for rectification, but also further enables the government to take a proactive approach at a higher level, creates a more reasonable and perfect social relationship permitted by law, recognized and agreed by the parties and the government, and urges the administrative organs to perform their duties in a more comprehensive and thorough sense.
At the same time, the process of administrative mediation is also the process of mutual supervision between the administrative organ and the relative person on whether to mediate voluntarily or according to law. As mentioned above, the law itself also contains and pursues social harmony. Therefore, the supervision of the administrative counterpart also urges the administrative organs to administer according to law and realize the harmonious value and pursuit of law.
Ensure the harmony of the system
Finally, the existence of administrative mediation system ensures the harmony of social conflict resolution mechanism system. The intensity of social conflicts is different, which determines that its resolution mechanism must be divided into different levels of systems. Article 9 stipulates that the object of administrative mediation by public security organs is "fighting or damaging other people's property caused by civil disputes, which violates public security management and has minor circumstances". Therefore, bringing social contradictions with relatively slight intensity into the scope of administrative mediation and other fierce social contradictions into the scope of administrative detention and even criminal sanctions can not only save the administrative law enforcement resources of public security organs, but also ensure the resolution of social contradictions and realize the internal coordination of social contradiction resolution mechanisms.
Principle and method
Administrative mediation, like court mediation and people's mediation, should persuade the parties to make mutual understanding and accommodation on the basis of finding out the facts, distinguishing right from wrong and distinguishing responsibilities, so that the parties can voluntarily reach an agreement to resolve disputes in accordance with laws, regulations and relevant policies. Therefore, legality and voluntariness are the principles that mediation must abide by. In addition, administrative mediation, like people's mediation, must adhere to the principle of protecting the litigation rights of the parties. This essence is closely related to the principle of voluntariness. If the parties are unwilling to mediate, mediation fails or they go back on their word after reaching an agreement, one or both parties have the right to bring a lawsuit to the people's court. This is the litigation right given to every citizen by law. There are various flexible methods of mediation, which are related to the knowledge and experience of specific mediators. But on the whole, in the process of mediation, we should do in-depth investigation and study, listen to the opinions of the parties with an open mind, find out the case, explain the case kindly and patiently, be patient and meticulous, be emotional and rational, and adhere to the working methods of persuasion, education and convenience for the masses.