Research On Dispute Reconciliation

Dispute solution is an eternal research subject for mankind. In China, research on dispute solution has its realistic pressingness. Traditional ways to solve dispute need to be reflected and integrated. Self-determination has the risk of getting out of control. Him-determination, i.e. lawsuit may cause national dictatorship. Co-determination, i.e. reconciliation, must be valued but normalized. The domestic research embodies such features as subject-diversity and method-pluralism, but still has several problems:the 1st is to equals "private solution" to"reconciliation"; the 2nd is to exclude such co-determination ways as conciliation from the category of reconciliation; the 3rd is to regard reconciliation or personal solution as folk law, which is opposite to national law; the 4th is that it is confined in some specified realms and difficult to have general discussions and conclusions. The abroad researchers have paid attention to dispute reconciliation, related with the reflection upon the western doctrine of rule-of-law, i.e. lawsuit-centralism. In China, there is a viewpoint that rule-of-law equals to lawsuit, equals to rule-of-state-law, equals to state-monopoly-dispute-solution-power.This has been criticized in the western.According to depending on whose wishes, the ways of solving dispute can be divided into self-determination, co-determination and him-determination. Co-determination can be called reconciliation. The definition of "reconciliation" should be redefined, which includes traditional reconciliation, conciliation and plea bargaining in western legal system and so on, but is opposite to self-determination and him-determination, and different from and connected with such concepts as personal solution, personal relief, self-relief, ADR and restorative justice. Will autonomy is the essence and basic principle of reconciliation. Will autonomy exists in solution of dispute of public law as well as in that of private law. In the former, it has the political foundation of Social Contract Theory, human natural foundation of Hypothesis of Economic, realistic foundation of that it is difficult to distinguish the public from the private. The expansion of will autonomy should get to be respected. As a kind of dispute solution way, reconciliation can also be regarded as a kind of system. From system-visual angle, reconciliation system contains formal and informal system, and the principle is the most basic problem in system. Besides will autonomy principle, presumption principle and procedure monitoring principle should be also the principles of reconciliation system.Subject is one of the structural essential factors of reconciliation. In dispute reconciliation, it needs subjects to play different roles such as the party and the 3rd person. There are arguments over the qualification of legal person among the academic circles. Legal person as a civil subject can become the party of civil legal dispute reconciliation. As the subject of the public legal disputes, legal person can reconcile civil responsibility problem caused by breaking public law, which influences the legal person's public legal responsibility that the judicial organ want to investigate. Legal person also can directly do plea bargaining with the judicial organ in order to solve criminal responsibility problem. The power (or the right) of the public prosecutor and criminal person to do plea bargaining can illustrate that legal person has or should have the party's qualification in public legal dispute reconciliation. The demand for "the same subjects the same rights" both in public and private prosecution can have the same function too. The 3rd person in reconciliation is different from that in lawsuit, also different from that of civil law. In reconciliation, the 3rd person has such functions as medium, judgement and compulsion. According to "official" and "folk", the 3rd persons can be divided into the official 3rd persons and the nongovernmental 3rd persons. Today in China, the public security, the procuratorate and the court and their staff can be called as "the official 3rd persons. The public security organ now has role conflicts and its authority is weak, which has also resulted in the tendency to reconcile disputes. The nongovernmental 3rd persons can be divided into the officialized ones typically such as the People's Conciliation Committees. Pizi, hunhun and other pure nongovernmental 3rd persons also play important roles in dispute solution. On certain meaning, society is ruled by the official, together with the bandit and the people through dispute solution.Norm is the 2nd structural essential factor of reconciliation. It needs norms to reconcile disputes. According to "official" and "folk", social norms can be divided into national norms and folk norms. Meanwhile, there still has a kind of soft norms-guanxi norms, also can be called guanxi rules. Each of these three kinds of norms in dispute reconciliation has its own functions. National norms can provide reconciliation with systematical supports, become the basic point of claims for rights, get to be the direct basis of the program of dispute reconciliation, be taken as the strategy tool for assault and defend. Folk norms can support the claims for rights of the involved party, become the direct basis of the program, support national norms, pass on and inherit multiculturalism. Guanxi norm, which consists of guanxi, human feelings and face, may transfer the argument, and vague the fact, confirm or change the clear rules and enhance the acceptability of the program of dispute solution, make discretion ascertainable. Three kinds of norms interact mutually. Interaction of national norms and folk norms presents different specific forms. Guanxi norm is a variable in the interaction of the national norm and the folk norm as well as the personality of the dispute-solver. These two variables have their effects in dispute self-determination and him-determination.Fact is the 3rd structural essential factor of reconciliation. It needs facts to reconcile disputes. The fact in reconciliation has different characteristics than that in lawsuit. In reconciliation, the fact can have the generality feature lack of essential factors, so it is vague and actually typed-fact. In lawsuit, the fact needs have the essential factors. In reconciliation, the fact may be sensed but in lawsuit it needs to be proved. In reconciliation, the fact faces the future and solves future problems but in lawsuit it solves the past problems. In reconciliation, the fact contains legal complicated relations, but in lawsuit, different suits are ascertained by different legal relations. In reconciliation, different norm-meanings of the fact can coexist but in lawsuit only one norm-meaning can exist. In reconciliation, both parties are cognitive subjects, but in lawsuit only the judge is the cognitive subject. The former are binary, the latter is unitary. Type analysis helps to grasp reconciliation from another angle. On the basis of our current law and practical circumstance, and according to the legal nature of the reconciled disputes, reconciliations can be divided into nonlegal dispute reconciliations and legal dispute reconciliations. The latter can be subdivided into civil dispute reconciliations, administrative dispute reconciliations, criminal dispute reconciliations. All of them have a lot of problems to be studied. In order to master better these reconciliation types, we give emphasis on court conciliation to civil dispute reconciliations. Through the comparison between conciliation paper and written judgement, we find that it is very difficult to give the adjudicative reasons in the former, so that the conciliation procedure and the judicial procedure should be separated. To criminal dispute reconciliation, we emphasize the victim-offender reconciliation of slight wound, and advocate attention should be paid on reconciliation in public prosecution. To administrative dispute reconciliation, we take the reconciliation of acts violating the public security administration as the emphasized example, compare conciliation and reconciliation in narrow sense in Law on Public Security Administration Punishments, and question the rationality of the different authentic legal regulations for them.Functional analysis is the 3rd visual angle to reconciliation. Functions of reconciliation can be divided into individual ones and social ones. The former mean such functions as solving disputes, forming rules, attributing responsibilities, restoring relationship etc. in solving individual cases. The latter mean the functions the reconciling way as a dispute solution mechanism may have in society. Reconciliation can compound double justices, help to examine, weigh and select benefits, meet social structure and so on.Because harmonious society foundation is the political ideal of the Communist Party of China, and running state according to law is her general plan, it is necessary to discuss the relation of reconciliation, harmony and rule-of-law. To found harmonious society needs to prevent various disputes as well as to solve various disputes properly. Also it needs a ternary organic whole dispute solution mechanism consisting of self-determination, reconciliation and lawsuit. It is to respect human rights actually to respect reconciliation, and reconciliation can promote the integrated development of man. The viewpoint that takes reconciliation as the opposite to rule-of-law originated from western nationalism and has western colour of rule-of-law. It needs to rebuild reconciliation under law, and the problems of China should be solved through Chinese way.