On The Administrative Reconsideration Of The Mediation System Is Constructed

As a method of aiding party concerned to reach an agreement so as to resolve dispute through exchanging ideas among parties concerned or providing correct information, intermediation, which is presided by the neutral third party, not only has the characteristics of low cost and high efficiency, but also reflects the basic concept of liberty, efficiency and seeking for essence and justice. Bringing intermediation system into administrative reconsideration is not only beneficial to settling administrative dispute appropriately and maintaining social harmony and stability, but also beneficial to saving judicial resources and reducing the lawsuit tiredness of the party concerned. At present, many countries abroad have drawn dispute-resolving methods of intermediation, pacification etc. into administrative procedure and achieved good social effect. However, in the theoretical field of administrative law of our country, there are still people who oppose to carry out intermediation in administrative reconsideration. Their theoretical basis is the idea in the traditional administrative right concept that the administrative right is the executive right and the general right can not be punished. But in reality, governments in our country have begun to try to find out using the method of intermediation to handle administrative dispute in administrative reconsideration for a long time. The theoretical basis of administrative law and relative systems that do not allow intermediation are not coincident with the situation of the present concept of administrative law tending to the concept of 'service and cooperation', and the contradiction and malpractice become more evident day after day. Under the new circumstances, the Implementing Acts of Administrative Reconsideration Law issued in May 2007 finally has specific stipulations on intermediation in administrative reconsideration. But the stipulations on the scope, principle and procedure etc. of intermediation are not very perfect and it lacks the legal principle explanation of the feasibility of applying intermediation to administrative reconsideration. Based on the practice, this text makes an analysis from the perspectives of theory and the feasibility in the real operation, aiming at whether intermediation system is needed bringing into and is suitable for administrative reconsideration, and based on this, it puts forward constructive ideas about how to construct intermediation system in the present administrative reconsideration system of our country.There are four parts in the text. Part One introduces the development, origin, characteristics and value of intermediation system, the suitability of intermediation in abroad administrative field and the applying in administrative procedure in our country at present, and makes comments on the situation of applying intermediation in administrative procedure home and abroad. Through comparison and contrast, the author finds out that the relative stipulations of administrative law on solving administrative dispute in our country at present are rather behind and can not suit for the need of the reality of our country. Part Two searches for the necessity of the intermediation through analyzing the value of lawful principle and social function of bringing intermediation system into administrative reconsideration. Part Three makes fairly deep analyses on the feasibility of intermediation in administrative reconsideration in our country. Through the introduction of the shift of administrative right concept and analyses on whether administrative right can be punished and the basis of applying intermediation in administrative reconsideration in our country, the author comes to the conclusion that applying intermediation in administrative reconsideration won't disobey lawful administrative principle, nor be harmful to the public interests; on the contrary, applying intermediation can effectively solving social contradiction and subsiding dispute. Part Four puts forward several tentative ideas about construction of intermediation of administrative reconsideration in our country, including the contents of principle, suitable scope, procedure establishment and relief ways etc. of administrative reconsideration intermediation.