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Research On Consultation Mechanism For Dispute Resolution

Posted on:2012-08-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:J X ZhangFull Text:PDF
GTID:1116330332997376Subject:Legal theory
Abstract/Summary:PDF Full Text Request
In the Social Transitional Period of our state, there are various types of disputes reflecting complex relationships in the community. And with the construction of a socialist country ruled of law speeding up, people's consciousness of the rule of law and right has been remarkably improved. Thus the amount of various types of cases about laws dramatically increases, and so our country goes into the "litigation society" stage. In order to solve the social disputes in the Social Transitional Period of our country and cope with diffculties come out in "litigation society", it is necessary to construct and improve the multivariate dispute resolution system.Consultation mechanism is one of the most important dimensions of building multivariate dispute resolution system. It is of great significance to research on consultation mechanism in-depth. First, the study of consultation mechanism is to meet the objective need in practice to resolve the disputes in China. Second, we can integratly promote the multivariate dispute resolution system construction through the study of consultation mechanism. Finally, the study of consultation mechanism is an intrinsic requirement for the construction of Socialist harmonious society.Consultation mechanism is mainly analyzed and investigated from five aspects in this paper, specifically including: (1) the theoretical definition of consultation mechanism, (2) the justice foundation of consultation mechanism, (3) the function of consultation mechanism, (4) the existing conditions of consultation mechanism in realistic society, and (5) the legal regulations of consultation mechanism. So this dissertation is correspondingly divided into five chapters to elaborate these five questions.The first chapter is mainly on the basic theory of consultation mechanism. Consultation is a kind of activity to achieve compromise through negotiation, discussion, etc. Consultation mechanism is the summation of series activities whose basic characterization is that no third party could compulsorily interven, the parties of dispute bargain to each other, and they independently reach an agreement to resolve the dispute. The consultation mechanism itself is mainly of five basic features such as follows. First, it is of autonomy. Consultation autonomy means that whether the progression of a consultation or not overall depends on the will of the parties.The parties shall be entitled to refuse to take part in and retreat from it. Second, it is of flexibility. Consultation flexibility refers that the entering and exiting mechanisms are flexible, the ways to discuss are in varies forms, and the procedures are not fixed. Third, it is limiting the participation of a third party to some extent. Consultation mechanism is a kind of intermediary type mechanism. The third party participating in the consultation can only play a negative role. He just has the rights to contact, introduce, suggest and so on. He has no decisive authority on procedural or substantive affairs. Fourth, it is of the convenience of information delivering. The parties of dispute discuss with relative person directly.They try to communicate with each other by familiar language.They will try their best to reduce barriers during information delivering, and transfer their opionions, appealings and reasons to each other directly in order to achieve an agreement. Fifth, the dispute resolution result got through it is of consensual nature. Consultation is a two-way communication process. The parties need to adjust their own appeals constantly until they reach a dispute resolution result all accept.From the perspective of the method of forming the content of consultation, consultation can be generally classified into three levels. They include the internal consultation of each party, the consultation of the parties with the subject out of the dispute, and the consultation between the parties. The contents of consultations on different level are different, the first twos decide the claim of each party, and the third one decides the contents of the final consensus. From the perspective of the consultation's process, consultation includes such four stages as information preparation stage, information transfered stage, information feedback stage and consensus arrival stage. These four stages are intertwined, and there are no bright boundaries among them. Because each stage may be the summary of the former stages, and each stage may be the preparation of the next stage.In multivariate dispute resolution system, consultation mechanism should own a foundational status. Multivariate dispute resolution system refers to a dispute resolution system which is composed of different dispute resolution mechanisms independently and coordinately. In this system, consultation is at the basis, mediation and others are at the leading status, and judicial is at the final security place. All sorts of dispute resolution mechanisms should be responsibly and orderly combined to form a network that can cover different types of disputes to ensure that "disputes may be solved" and "disputes will be settled".In the second chapter it mainly discusses the justice theory as a legatimative foundation for consultation mechanism. It is necessary for dispute resolution to implement the substantive justice. But the substantive justice is of great uncertainty because of the influence of fuzziness which is caused by dispute facts, the judgment basis and the judgment behavior, as well as the measure standard. So we have to set some other justice standards as supplement in different dispute resolution mechanisms. As a supplement, the procedure justice emphasizes the justice of process, but it may lead to the result that "Though case is over, the dispute hasn't been settled". So we introduce the concept of mutual benefit justice as a new supplement. The standards of mutual benefit justice are consisted of rational autonomy within the framework of dispute, relative equality in closed structure, and common rules approved by both the parties. Mutual benefit justice is a kind of justice achieved through consultation mechanism. This chapter also discusses the foundation of mutual benefit justice through several approches such as utilitarian, ethic morality and cultural anthropology.The third chapter mainly analyzes the function of consultation mechanism. The function of dispute resolution mechanism refers to the actual effectiveness and social effect played by dispute resolution mechanism in resolving disputes. The function of consultation mechanism is mainly embodied in the following aspects.First, consultation mechanism is a peaceful means to control society, because it can resolve disputes peacefully. Consultation mechanism can prevent social conflict, and actively cultivate the internal, tolerant, harmonious social order. In addition, consultation mechanism can reflect and cure certain social ethics and shape upright citizen personality. Second, there is remarkable effect for consultation mechanism to distribute social disputes and alleviate the pressure of cases on other dispute resolution mechanisms, especially judicial. Consultation mechanism could resolve the social disputes which have little conflict within the parties, and avoid vast disputes flocking into the judicial organs. Consultation can also improve the efficiency of lawsuit to a certain extent. If the dispute entering litigation has been consulted yet, then the court can resolve major disputes pertinently, cut unnecessary investigation process and reduce the waste of judicial resources. Third, consultation mechanism is not only creating the "temporary" rules but also form some permanent rules to a certain extent. This is because that any type of disputes may be a social phenomenon which could be replicated and repeated. When the rules resolve a certain type of disputes produce some good effect, they will provide available reference standards of behavior for potential similar disputes. Fourth, consultation mechanism can realize the diversified value target of the parties, especially can realize the practical needs of efficiency, and realize rights peacefully.The fourth chapter investigates the present situation of consultation mechanism from the perspective of sociology. Observing from the field and scale of existence of consultation mechanism, on the one hand, wherther in developed or developing countries, in rural or urban areas, there are nearly 80% (even more) disputes resolved or tried to be resolved by consultation mechanism. On the other hand, consultation mechanism is not only confined to the field of civil and commercial disputes, it is even gradually infiltrating into the field of the criminal cases.Although consultation mechanism plays an important role in dispute resolution practice, there are also some problems to be solved. On the one hand, consultation is a kind of subject-dominated behavior, so it often contains opportunities of lax and willful. On the other hand, our country is lack of a formal legal system of consultation. So the result of consultation does not have coercive force. The programs and deadlines of consultation mechanism are with large elasticity. And the lacking of the necessary security measures for consultation mechanism influences the trust and confidence of the society on consultation mechanism, so it blocks consultation mechanism to play its functions effectively.The fifth chapter mainly discusses the problems of the legal regulations on consultation mechanism. There are some conflicts between consultation mechanism and rule of law. First, consultation mechanism may not be able to protect the interests of the parties effectively, especially when there is an economic strength gap, consultation mechanism may become bullies means. Second, consultation mechanism might undermine the realizing of law's purpose. The content of consultation may destroy the law's purpose. It may lead to the result that some cases fail to enter into the judicial field and are out of judicial protection. Third, consultation mechanism may disrupt the legal order. The behavior of avoiding legal rules may influence law's effect and damage law's authority. The social background of regulating consultation mechanism is that we are in a transitional period. Social Transition Period is a changing and developing period. Society and state begin to separate, freedom and ration begin to reveal, the idea of independent, fair play, and equity and democarcy gradually get recognized by social subject. And these ideas constantly inspire people to create a free, equal and democratic social environment. The tacit understanding relationship between practice and theory remains to be further improved in the transitional period of Chinese society. The formal system carried out in folk still need to be advanced in exploration. Acquaintances society hasn't been fully replaced by strangers'society. It still has its own space to survive and develop. It is much more habitual for acquaintances society to use informal system as the key link. Therefore the transitional period breeds the consultation mechanism, and consultation mechanism is the lubricant of transitional society.The purpose to regulate consultation mechanism is to make it correspond to social transformation. The conjunction includes creating common rules fitting resolving disputes flexibly, the historical reduction of resolving disputes fitting autonomy, the mutual benefit justice fitting multivariate dispute resolution purposes, and the usual dispute resolution mechanism fitting multiple dispute resolution system.Nowadays, the regulations about consultation mechanism in other countries and regions can provide important reference for us. For example, the reconciliation conference system of the federal court system in the USA, the settlement offer program in some American states courts, the small trial system in America, the repair judicial system in American, the Pre-action Protocols in Britain, the debate- reconciliation program in Japan, and lawsuit consultation reconciliation system in Taiwan, etc.Based on the actual conditions of our country, we should improve and strengthen the legal regulation of consultation mechanism from the following aspects. First, we must make it clear about the basic principles consultation mechanism shall involve, such as the principle of freedom, the principle of equality, the principle of legality, confidential principle, etc. Second, we should provide a series of basic rights and obligations for the parties in consultation, so as to ensure the order in consultation. Third, we should provide detailed consultation system through the laws and regulations. The system shall specify the following content, the range of the disputes that can be resolved by consultation, the entering and exiting mechanisms of consultation, the procedures of consultation, the legal force of consultation's results, the corresponding responsibility of lawbreaking, and the security and relief mechanism of consultation. Finally, we should construct and improve the multivariate dispute resolution system, and make it clear that consultation mechanism has a foundational status in the multivariate dispute resolution system.
Keywords/Search Tags:consultation mechanism, dispute resolution, the multivariate dispute resolution system, mutual benefit justice
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