Research On Administrative Mediation

Administrative mediation has been an important part in mediation systems. It not only promotes administration by law, the transfer of the government function, but also has been playing an important role in reconciling and alleviating social conflicts.With the wide use of ADR in western administration, administration mediation, known as"eastern experience"has become the concern of academic circle in the world. However, because the deficiencies existed inside the mechanism itself in China, it faces the new challenges. Based on this, the analysis and explanation of the system of AM will be shown in this paper. It includes the following three parts.The first part: A Brief Account of Administrative Mediation in Theory.First of all, redefining AM(administrative mediation). Firstly, administrative organizations are taken as the only main body to put AM into practice by most scholars, which, to some degree, is too narrow. That the guidepost of administrative law has given way to public service from public power and has expanded to public administration from government administration is the uncontroversial fact. Therefore, the diversification of the main body in AM is the historical choice. Secondly, though AM is largely based on the laws and regulations issued by the government, it is impossible that laws can solve all social conflicts. Public order and good customs are often resorted to mediating the relationship between people. Hence, by reflecting the above facts, the definition of AM should expand its body to administration one and make the public order and good customs become its foundation. Thirdly, the characters are concluded according to the recognition on AM by comprehensive theoretical circles and physical sectors, and regulation on AM home and abroad. AM is equipped with five characters, like specificity of main body, object relevance, quasi-justice of form, non-mandatory approach and effectiveness of the non-binding. Lastly, based on the analysis of the similar concepts, such as people's mediation, judicial mediation, administrative adjudication and administrative arbitration, it gives clarification to the concept and nature of AM.The second part: Theoretical Foundation and Practical Function of AM. First, the theoretical foundation should be analyzed. AM is a typical non-compulsory administrative behavior, thus common demonstration about non-compulsory administrative behaviors can surely be applied to AM. However, as a social adjusting mechanism of system and universality, administrative mediation has become an important part in non-dispute resolution mechanism and is parallel to judicial suit. Enlightened by different methodologies of law in the research of dispute resolution, a new way can be built for us to do a research on AM. These different methods of law contribute to the comprehensive theoretical framework, in order to make the existence of AM reasonable and legitimate in a society managed by law. The benefits of diversity, the demand of dispute resolution and value orientation are the practical foundations of its emergence, while the intentional autonomy and the right of choice made by clients based on privilege, benefit and effectiveness are the legal basis; the punishment right of client, appropriate program and judicial censorship are the basic guarantee of operation of AM.Secondly, the practical function is expounded by comparing with lawsuit. AM is helpful to transform the way of government administration and mould the concept of service government; and it is beneficial to complete solution of conflicts and create the harmonious social atmosphere; it is favorable to save administration cost of dispute resolution; it serves to realize the entity of justice of administration persued by human being. AM accumulates the experience through solving professional conflicts, in order to promote the importance of law. It plays an important role in establishing the harmonious society.The third part: The present situation is analyzed, and perfect advice is suggested through examining and draw lessons from the relevant institution of the two big law system.To begin with, present situation of AM in China is analyzed from two aspects: first, the problems of AM are put in order. From the angle of mechanism of AM of AM itself, administrative mediators are uneven quality. Administrative mediation organization is placed unreasonably. With regard to the mechanism of AM system, the application of AM law is inconsistent; the system of AM is inadequate; the legal provision is very simple; AM lacks the basic procedural regulation. From operation mechanism point of view, the agreement of AM doesn't have positive legal effect; AM is deficient in relief mechanism. According to the analysis in this point, it is obvious that there are many deficiencies in AM, which restrains the function of AM. Second, the reasons that AM exposes many problems are analyzed. Legal philosophy is the first reason. The existence and development of AM mainly faces the barriers exposed by the aspect of legal concept. The barriers largely come from the doubt towards the belief in the rule of law. Then, the mechanism of AM itself is the reason. Supported by administrative authority, the practice of AM will cause the abuse of administrative power. Once again, the situation in real life is also the reason. Due to the complex factors, such as, the organization systems during social transformation period, citizens'social value and legal awareness, AM exposed many problems. Therefore, the reasons of existence of AM are discussed from these three aspects.In the next place, the enlightenment of the relevant systems of AM is summarized according to the view of comparative law. In recent years, along with the sense of the non-US dispute resolution (ADR), as well as Japan's ADR system, strengthening litigation settlement is a major trend in the development of a modern legal system. It is revealed that the position of AM must be ensured by independence, which is the necessity of the production effect of AM; the way of AM should embody the idea of active administration, which is mediation commissioners'general working idea throughout the world; the effect of AM should be authoritative, which comes from the purpose, idea, quality and privilege of mediation, and so on; the principles of AM should run through the process of mediation. The mediation based on principles can actually realized the impartiality.At last, advice about how to improve the AM is mentioned. According to the problems that exist in AM, learning from practice, several suggestions are made from following five aspects: optimizing the organization of AM, and strengthening mediators'professionalism can only make AM specialized and professionalized. Expanding the scope of AM and satisfying people's mental need can only contribute to the solution of problems; improving the procedures of AM can only guarantee the fairness and justice of mediation; establishing the legal responsibility system can make the mediators serve the public and running in order to ensure AM run smoothly; clarifying the effect of AM can develop its function to the utmost.