检察机关实质性化解行政争议问题研究

A Research of the Procuratorial Organ Participating in the Substantive Resolution of Administrative Disputes

检察机关实质性化解行政争议是检察机关法律监督职能的延伸,体现为当事人合法行使处分权与行政检察监督的复合。检察机关实质性化解行政争议具有权利救济、替代性纠纷解决和社会治理等属性,在司法办案中应当坚持合法、自愿、诉讼监督与纠纷解决相结合等原则;坚持法律监督与争议化解有机结合,尊重正确生效裁判既判力和行政自由裁量权,以纠纷解决为导向,在法律监督过程中解决行政相对人合理诉求;坚持依法全面审查的原则,处理好纠纷解决与公权监督、公益优先与私益救济、程序正义与实体利益保护的关系,最大限度地实现案结事了。在机制构建方面,应当坚持检察机关法律监督职能定位,遵循司法规律,尊重当事人的处分权,科学界定检察机关实质性化解行政争议的范围,进一步明确检察机关实质性化解行政争议的效力保障机制。

Procuratorial organ participating in the substantive resolution of administrative disputes is an extension of the legal supervision function of the procuratorial organ, and it is reflected in the combination of the parties’ legitimate exercise of disciplinary power and supervision of administrative prosecution. Based on the value goal of administrative litigation to safeguard the lawful rights and interests of administrative counterparts and supervise administrative organs to administer according to law, the procuratorial organs resolve the reasonable demands of administrative counterparts in supervising and correcting administrative violations or administrative failures in accordance with law;at the same time, procuratorial organ participating in the substantive resolution of administrative disputes has a high degree of coordination, and through active supervision in accordance with law, the procuratorial organs work together to resolve disputes and participate in social governance. So procuratorial organ participating in the substantive resolution of administrative disputes has multiple attributes of legal supervision, rights relief, alternative dispute resolution, and social governance. In judicial case handling, the principles of legality, voluntariness, efficiency, and the combination of litigation supervision and dispute resolution should be adhered to. We should also adhere to the organic combination of legal supervision and dispute resolution, respect the power of correct and effective judgments and administrative discretion, be oriented to dispute resolution, and resolve the reasonable demands of administrative counterparts in the process of legal supervision. Procuratorial organ participating in the substantive resolution of administrative disputes shall properly handle the relationship between dispute resolution and public power supervision, public interest priority and private interest relief, procedural justice and substantive interest protection, based on administrative procuratorial supervision functions, and while resolving the reasonable demands of administrative counterparts, strictly abide by the boundaries of national interests and public interest protection. Under the principle of due process, we fully consider the substantive interests of the parties and strive to settle the case. In terms of system construction, it is necessary to adhere to the positioning of legal supervision functions, follow judicial laws, respect the parties’ right to dispose of them, and scientifically define the scope of procuratorial organ participating in the substantive resolution of administrative disputes, that is,resolving disputes in the review of supervision applications, cooperating with the court to resolve disputes after protesting(retrial procuratorial suggestions), resolving disputes in administrative non-litigation enforcement supervision, docking with social governance centers to resolve disputes, intervening in administrative reconsideration and mediation in court litigation. Among them, for intervening in administrative reconsideration and court litigation mediation, it should remain modest, generally not actively intervening in pre-litigation resolution, but at the invitation of local Party committees,governments and their departments. Based on social governance, the procuratorial organs can participate in the administrative reconsideration stage to resolve the disputes;based on “trial relief first, the procuratorial supervision later”, in principle, the procuratorial organs do not participate in mediation in court litigation, but if administrative counterparts are in trouble due to late prosecution, dismissal of lawsuits, etc., in order to resolve their reasonable claims, the procuratorial organs can appropriately intervene in resolving them. Finally, in the event that one of the parties repents and refuses to perform the settlement agreement, the procuratorial organs shall handle it in accordance with the principles of litigation integrity and public order and good customs, so as to ensure the effectiveness of procuratorial mediation. At the same time, the procuratorial organs shall establish and improve mechanisms for procuratorial organ participating in the substantive resolution of administrative disputes, and clearly regulate the binding force of procuratorial mediation.