摘要
当前,调解已成为我国行政复议的基本原则和基础程序。行政复议调解在复议机关的主导下,通过协商平衡各方利益达成合意解决纠纷,是行政复议实质性化解行政争议的重要方式。行政复议调解书是当事人自愿接受调解达成的调解协议的书面确认书,其并不完全等同于行政复议决定书。从行政复议调解书的作出、内容和实施来看,其具有“作为合意结案方式”“作为实质性化解行政争议结果”和“作为执行依据”的三重规范属性。行政复议调解书的作出规则、法律效力和强制执行方式需要在行政复议的相关制度规定中进一步予以明确和细化,以更好实现行政复议调解结案的制度效能。
The Administrative Reconsideration Law revised in 2023 has established mediation as a fundamental principle and basic procedure of administrative reconsideration.The determination of the legal nature of the administrative reconsideration mediation document directly affects the enforcement strength and implementation effect of the document,and further influences the performance of the mediation function in administrative reconsideration.However,in the practice and theoretical research of administrative reconsideration,there are differences in the understanding of the legal attributes of the administrative reconsideration mediation document.In fact,there are significant differences between the issuance of the administrative reconsideration mediation document and administrative reconsideration decision,with distinct behavioral logics and institutional mechanisms.They cannot be simply treated as the same;otherwise,it will be detrimental to the systematic construction of the administrative reconsideration mediation system.Based on the institutional provisions and practical exploration of administrative reconsideration mediation,this paper reveals the triple normative attributes of the administrative reconsideration mediation document as a means of concluding cases through consensus,as a result of the substantive resolution of administrative disputes,and as a basis for enforcement from the three aspects of its issuance,content,and implementation.First of all,administrative reconsideration mediation belongs to a consensual dispute resolution method,which fundamentally determines that the administrative reconsideration mediation document cannot be completely equivalent to an administrative reconsideration decision document.Administrative reconsideration mediation centers on the substantive interests of the parties involved,with communication and negotiation between the parties as the medium.The main function of the reconsideration authority is to mediate and convey information.The administrative reconsideration mediation document is made based on the consensus of the parties and must be based on the true expression of the parties intentions.The reconsideration authority should conduct a comprehensive review of the legality of the mediation agreement reached by the parties from both procedural and substantive aspects,and then issue the mediation document.Secondly,the administrative reconsideration mediation document is a written carrier of the substantive resolution of administrative disputes,detailing the request for administrative reconsideration,facts,reasons,and the mediation outcome.The types of administrative disputes subject to administrative reconsideration mediation should not be simply judged by the binary logic of“legality-illegality”.Instead,in individual cases,the degree of illegality of administrative decisions,the possibility of rectification,and the feasibility of reaching a consensus between the government and the people should be comprehensively considered to ensure that mediation can be applied to all types of administrative reconsideration cases.The administrative reconsideration mediation document has the effect of terminating the reconsideration procedure,alters the content and validity of the administrative act under reconsideration,and is binding on the reconsideration authority and the parties involved.Finally,the administrative reconsideration mediation document has the function of serving as an enforcement basis.Only when the content of the effective mediation document is fully implemented can the administrative dispute be resolved substantively.Based on the hierarchical supervision relationship between superior and subordinate administrative organs,the respondent should proactively fulfill the obligations determined by the mediation document.At the same time,the applicant and the third party should be granted the right to request the respondent to fulfill their obligations,and the two-way institutional framework for the compulsory enforcement of mediation document should be established.
出处
《暨南学报(哲学社会科学版)》
北大核心
2025年第6期52-65,共14页
Jinan Journal(Philosophy and Social Sciences)
基金
司法部法治建设与法学理论研究项目“风险预防视角下突发公共卫生事件应急管理行为规制研究”(20SFB4019)
深圳大学高水平大学三期建设重大专题(25ZDZT04)。
关键词
复议调解书
合意
实质性化解行政争议
法律效力
执行依据
administrative reconsideration mediation document
agreement
substantive settlement of administrative disputes
legal effect
execution basis
