Research On The Legal Issues Of Administrative Reconsideration Mediation And Reconciliation

As an important way to solve disputes in Chinese society since ancient times,mediation and reconciliation play an irreplaceable role in the settlement of various social disputes at the grass-roots level,which reflects the cultural spirit of advocating harmony and the tradition of rule of law in China.The Administrative Review Law has not stipulated the mediation or reconciliation system until Regulations for the Implementation of the Law on Administrative Review implemented in 2007,which added Article 40 and 50 to establish the above two systems,but there are no other supporting provisions.The related contents in the administrative review field are also scattered in the departmental rules and local government rules in different fields.However,such simple provisions have created new problems and contradictions: The Implementation Regulations of the Administrative Reconsideration Law do not clearly define the definition,nature,and effectiveness of mediation and reconciliation,and do not provide effective safeguard measures,which directly lead to unreliable practice and make the development of the two new systems encountered serious obstacles.On the one hand,from the perspective of the practice of reconsideration,the reconsideration organ tends to use mediation to urge the applicant to withdraw theapplication so as to end the reconsideration procedure.Even if the original administrative act made by the administrative organ is illegal,it still expects to see the parties reach a settlement,which leads to a large number of mediation and reconciliation situations in practice.On the other hand,from the perspective of judicial practice,the court ignores the lack of legal basis for the compulsory execution of mediation and conciliation,and often grants the application for compulsory execution of administrative organs,excluding it from the scope of accepting cases of administrative litigation.In fact,the court makes no distinction between the nature and effect of mediation and conciliation of administrative reconsideration.The judicial organ cannot play its function of "the last line of defense",not only because of the serious lack of relevant laws,but also because the administrative reconsideration system cannot be well connected with the administrative litigation system.Whether in the implementation basis,principles,subject or examination way,etc.,the administrative reconsideration system should links up with the administrative litigation system,assure the applicant and the third party can have barrier-free access to the administrative litigation.Administrative review mediation statement should have the nature of administrative reconsideration decision and the settlement agreement should have the nature of administrative reconciliation contract.The different nature of the two should determine their different treatment in administrative proceedings.It has been 13 years since the Implementation Regulations of the Administrative Reconsideration Law came into force.The disputes over the scope of application,the absence of relevant legislation and the overlap of system structure are the reasons why the system of reconsideration coordination and reconciliation has not been put into the administrative review law.There are too many similarities between the two systems,whether in the macro aspects such as legislative basis,purpose,value orientation,basic principles,or in the micro aspects such as the implementation basis,review form,review principle,coordination method and procedure design,as well as the follow-up guarantee.The legislator tries to distinguish the two systems,but for objective reasons cannot make a strict distinction.Moreover,in the practice of reconsideration,many reconsideration organs cannot and in fact cannot strictly define the boundary between mediation and reconciliation,resulting in the substantial overlap of the two systems.The non-standard practice,the immature legislative environment and the disunity of legal concepts force the Administrative Review Law to revise the existing mediation and reconciliation system.It is suggested that the existing mediation and reconciliation system of administrative review should be unified and integrated,and the reconciliation system should be formally abolished.On this basis,the mediation system should be shaped and improved.On the one hand,the definition,nature and basic principles need to be clarified.On the other hand,the scope of administrative discretion need to be defined,the subject of mediation need to be redefined,and the scope of application of administrative reconsideration mediation need to be further determined.At the same time,the specific rules should be improved from the aspects of starting and ending procedure,and effectiveness guarantee.The corresponding supporting mechanism should be added to fully alert the relevant risks and protect the legitimate rights and interests of the applicants.