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On The Mechanism Of Dispute Resolution By Administrative Organs

Posted on:2009-12-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:H WangFull Text:PDF
GTID:1116360245464468Subject:Legal theory
Abstract/Summary:PDF Full Text Request
At present, our country is at a centurial period of social structure transformation. During the process of the singular social structure being transferred into plural one, the pluralism of the social mainstay results in the diversification of the interests inevitable. Thus, it brings the social vitality, in the meantime, social disputation increase. Moreover, the manifestation of disputation becomes more complicated. Facing complicated social disputation, it is very important to find a way to solve dispute resolution mechanism problem. It becomes one of the most important theoretical and practical problems that can promote the social harmony and stability in the period of social transformation for legal science. From other country's idiographic modus operandi, on one hand, they promote the judicial agency's ability of dispute solution by judicial reform; on the other hand, they search for the ADR actively. The dispute resolution by administrative organs is a very effective and important way of ADR.Presently, the dispute resolution by administrative organs becomes mature day after day in many countries, and it is more systematic and legalized and formed gradually a brightly characteristic mechanism of dispute resolution by administrative organs. In our country, although the mechanism of dispute revolution by administrative organs is not yet systematic, the administrative organ actually has exercised in resolving a dispute, and certain methods are integrated in the legal norm setting range, therefore the framework of the mechanism of dispute revolution by administrative organs has been formed initially. However, the conservative and lagged concept limits renewal and the development of the fundamental research, and the research's scarcity affects legal regime's construction and the consummation, and the legal regime's vacancy and fuzzy causes the mechanism of dispute revolution by administrative organs to be malfunction, empty and lacking in vitality in the practice. These causes it's a contradiction between the potential of the mechanism of dispute revolution by administrative organs and actual demand. In view of this, this article attempts to research on the mechanism of dispute revolution by administrative organs thoroughly and many difficult problems in practice, and analyses the reasons that cause the mechanism to fall into difficulty, then constructs our country's mechanism of dispute revolution by administrative organs systematically to provide the constructive suggestion, initiates more widespread attention and more profound research.The paper is divided into the introduction, the main body and the conclusion.In the introductory part, the paper briefly introduces formation of the subject, and carries on the essential definition of the thesis, finally, the overall structure of this paper is presented.The main text includes four chapters.Chapter One: Theoretical Analysis of the Mechanism of Dispute Revolution by Administrative Organs.Dispute as conflicting mode for the social main body in the historical development of human society becomes a social phenomenon which one cannot avoid. Although the suitable dispute is "the safety valve" of the society , can enhance "the immunity" of the society and has positive function. Some dispute, if not properly and promptly solved, will possibly break the agent which the society can withstand and will bring great, even the ruinous destruction for the social order. This kind of dispute highlights and is usually more centralized in a transitional society, therefore, it needs effective resolution to avoid conflict or the solidification in the social structure. It becomes a question a transitional society must face. The multiplicity and the complexity of the disputes have decided the polytrophic way to resolve the problem, while the mechanism of dispute resolution by administrative organs may provide a society with alternative choice. In this chapter, the paper first explores the historical background, the characteristic, the function as well as the flaw of different mechanism types of dispute's production, and analyzes the production condition of the mechanism of dispute resolution by administrative organs. Any system's production has its generative condition, so does the choice of a mechanism of administrative dispute resolution. To research on the mechanism of dispute resolution by administrative organs, the first step is to discuss its generative condition. As to the worldwide scale, the society needs is the background of this mechanism; functionality limitation of the mechanism of lawsuit dispute resolution and other alternative dispute resolutions are institutional needs of the production of this mechanism; the unique superiority of the dispute resolution by administrative organs which is different from the lawsuit as well as other vicarious dispute solutions is the functional condition which urges this mechanism production; while that the state constructs as well as impels positively urges the administrative organ to solve dispute is the key factor. Besides the production condition, this chapter also analyzes its behavior and nature. The nature is the core of the dispute resolution by administrative organs, and is the premise essential factor on the institution construction. But the understanding of this mechanism among scholars are not united, home or abroad. With the analysis and the proof, the paper name the behavior as a judicature administrative action which is authorized by way of the Legislature. Finally, the paper gives an introduction in the main body, the scope, the procedure as well as the concrete modus of the mechanism of dispute resolution by administrative organs.Chapter Two: Analysis and Comparison of the Foreign Mechanisms of Dispute Resolution by Administrative Organs.As one serviceable mechanism of dispute resolution by administrative organs, it fuses with the concrete national conditions of many countries, and unfolds the different characteristics. In this chapter, the paper dwells on certain representative mechanism of dispute resolution by administrative organs of Britain, the US, Japan, Germany, France and so on, and has carried on the complete and accurate inspection and has compared the applicable scope, the independent status of the main body, the procedure as well as the judicial institution. Therefore in constructing our mechanism of dispute resolution by administrative organs, we must base on concrete national condition of our country as well as the background of the reformation, and should not imitate some country's ready-made experience blindly.Chapter Three: Analysis of the Difficult Position and Its Origin of the Mechanism of Dispute Resolution by Administrative Organs.As the important supply to lawsuit system, the dispute resolution by administrative organs becomes mature gradually in many countries, and has formed the institution development, and then with the lawsuit system as well as other vicarious dispute resolution mechanism constitutes a country dispute resolution system. But, in our country, the present mechanism of dispute resolution by administrative organs actually does not fully display its unique superiority, instead it presents declines condition. It meets its bottleneck. In this chapter, the author takes each concrete modus of the mechanism of dispute resolution by administrative organs as the analysis unit, microscopically points out the entire questions and drawbacks. For example, the administrative ruling withers day after day; the administrative mediation is soft and weak; the administrative arbitration is unworthy of the name; the administrative review becomes a mere formality; and the administrative complaints have got an uncertain future. The institutional flaw is the most direct reason, which makes the mechanism of dispute resolution by administrative organs fall into the difficult position. In addition, the idea is the radical reason.Chapter Four: The Innovation of Ideas and the Institutional Construction of the Mechanism of Dispute Resolution by Administrative Organs.In this chapter, the paper proposes the solutions in view of the difficulties that the mechanism falls into, which includes the innovation of ideas and the institutional construction. In the innovation of ideas part, the author points out that the idea is a concept including the theory, the ideal, the faith and so on, which the institution's existence basis and the intrinsic soul, and decides the function of the institution to a great extent. The goal of the construction of the mechanism of dispute resolution by administrative organs lies in the realization of dispute's effective addressing, which means that either idea restructuring or system's tentative plan must center on this point. Then in the mechanism of dispute resolution by administrative organs in the construction and the operation process, the ideas of efficiency, autonomy, rule of law and harmony are very important. Among them, efficiency is the justifiable reason, autonomy is the cornerstone of the mechanism construction, rule by law is the safeguard of the mechanism operation, harmony is the final target of the mechanism of dispute resolution by administrative organs. In the institutional construction part, the author takes administrative ruling, administration review as well as administrative complaint as the operative model.In administrative ruling mechanism, the author emphatically talks about the independence of the main body, the scope's definition of the ruling power, the basic principle of the ruling procedure and the rule unification as well as the ruling relief system. In administration review mechanism, the author first criticizes the review machine-made localization and thinks that it aimed at the solution to administrative dispute between administration main body and administrative opposite party. In the correction deviation of the elementary object localization, the author gives some suggestion on the review main body, the review procedure. In administrative complaint mechanism, the author first determines the basic object of the administrative complaint system in the current time, then proposes the reform mentality from complaint's applicable scope, the status and the authority of the complaint organization as well as the way of the complaint organization and so on.In the conclusion part, the paper tries hard to answer such two questions: Why is the mechanism of dispute resolution by administrative organs needed? What kind of mechanism of dispute resolution by administrative organs do we need? The author elaborates that any kind of mechanism of dispute resolution by administrative organs has its respective suitable condition and its scope, therefore, the mechanism of dispute resolution by administrative organs is by no means to abandon the lawsuit system, and is not to repel other vicariousness, but is a way to resolve a dispute and a remedy method aimed at the specific dispute utilization.
Keywords/Search Tags:Dispute, Resolution, the Mechanism of Dispute Resolution by Administrative Organs, Innovation of Ideas, Institutional Construction
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