Author: Lin Wanquan Release Date: 2003-12-0813: 38: 53
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I the concept of administrative mediation
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 period of the new democratic revolution, the grassroots people's governments in the 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 governments mediating 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) mediation by grassroots people's governments. Mediation of civil disputes and minor criminal cases has always been a duty of the grassroots people's government in China, which is mainly carried out by judicial assistants of township people's governments and sub-district offices. Judicial assistants are members of grassroots people's governments and judicial administrators. 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 should organize the parties concerned and relevant personnel to conduct damage mediation after finding out the causes of traffic accidents, identifying the responsibilities of traffic accidents and determining the losses of traffic accidents. 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.
Four, the principles and methods of administrative mediation
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. Over the years, there are numerous empirical methods of administrative mediation.
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