A Study Of Court Mediation As A Procedural System

The development of civil procedural theory and practice is based on the contradictions between court mediation and judgment in China in recent years. Though judicature reform is regarded as a revolution, it is in a dilemma now. Not being in support of abundant social and political conditions is the factor on one hand, the theory hypothesis that court mediation and judgment are juxtaposed modes of trial in civil procedural system is on the other. It has not revealed the essence that judicature has always been political tool, neither has it given enough theoretical guide to judicature practice. By treating court mediation as a civil procedural system, the author tries to probe into its essence and direction in developing.This paper consists of three parts: the introduction, the body and the conclusion.The introduction pionts out the significant and a survey of court mediation research , and raises the train of this paper.The body includes four sections.Firstly, on the basis of the theory of the relationship between suit and authority at the angle of jurisprudence indicates that there is a circulatory structure in civil lawsuit in China, from which a check and balance structure in western countries is different. The mode of lawsuit is neither mediation nor judgment ,although features can be testified on both sides.Secondly, a comparison between China and western countries shows that the spaceand xtahilily of law can not come into being by circulatory structure, which gives expressionto the value of objective fact. The confusion of living fact and legal fact, which is the reasonthat procedural material separates from both court mediation and judgment, makes courtjjnediation the only mode of procedural system.Thirdly, court mediation is effective in realizing the legitimation, the essential condition of any procedural system, of both judicature and state power. With this character, court mediation has been selected in different historical periods as the form of civil lawsuit.Fourthly, court mediation is neither the traditional mediation nor the mediation of western countries. So the source of crisis of court mediation dose not lie in the co-existence of mediation and judgment, but the value of objective fact.?The conclusion discusses the source of the malady of judicature. In spite of the differences between court mediation and judgment, there is the common character of informalization under the value of objective fact. Therefore, the separation of them will not become effective.