On General Theory Of Civil Mediation In Lawsuit

Mediation as an old resolving method of dispute has been acting on thousands of years in our country. Civil lawsuit mediation evolves from the folk mediation. Its characters history may trace back to Western Zhou Dynasty. It takes root among the culture background of advocating harmony of Chinese society. It bears the deep intension of folk culture and corresponds to the Chinese consciousness and emotion of law. So the people are willing to accept it. After the New China was found, the civil mediation was bring into the judicial system of our country and became an official civil lawsuit system. The mediation in civil lawsuit taking the legislate and voluntary as principle was designed more normally on movement pattern of system and continually strengthens the system of resolving dispute by litigants'suit and endows the mediation contract with force power of the country.The position of lawsuit mediation in our civil lawsuit system undergoes a produce from overheat in early of New China to the desalination in the ninetieth of twentieth century and to revive in twenty-one century.This essay begins with the relapse of the position of lawsuit mediation system in our civil lawsuit and takes on the civil lawsuit mediation as a method of resolving dispute which has the Chinese characters and studies on it systematically from the angle of study of legal theory under the background of struggle of many-faceted benefits in modern society which calls the many-faceted lawsuit resolve system and the vigorous development of substitute lawsuit resolve system. The author takes the limitation of judicial function as the cut-in point, which lies on realization the formal justice and general justice and tries to conduct the research on the essence of the lawsuit mediation system. The article theoretically argues the function of civil lawsuit mediation which achieves both the formal justice and substantial justice in the course of dispute settlement. The author also expresses the academic opinion that as a organic section of dispute resolve system in our modern society the civil lawsuit mediation is an important measure to promote the construction of harmonious society and a necessary and benefit supplement to judicial functions.The innovations of this essay lie in: this essay comprehensively analyzes and explains the nature, culture basis, core value of civil lawsuit mediation and its interaction with the judgment from the level of general theory within the sphere of dispute settlement of modern society,. For the first time the author put forward the viewpoint that the core value of civil lawsuit mediation is to achieve the substantial justice in concrete case and prove it. In the civil lawsuit mediation there exist judicial power of the state and private right of parties. Civil mediation proceedings just are the propulsive process of the judicial power of the state and the party autonomy right mutually affecting. In order to distinguish the relationship of the both, the author boldly leads into the ideal of contract freedom in contract law and studies the civil lawsuit mediation contract as a kind of dispute-solving contract and thereby reaches a basic principle of civil lawsuit mediation system that the free settlement of private right has priority and the intervene of state public power makes a concession to the second. This will provide a theoretic support to the development of civil lawsuit mediation.This essay utilizes many analysis methods. Firstly, the author probes into the unique law consciousness and emotion of Chinese nation implicating in the back of phenomenon that the civil mediation goes through for several thousand years and not decline by way of the historic inspect and cultural exploration; Secondly, from the angle of view of legal-sociology the author explains the relationship between the civil lawsuit mediation and judicial justice utilizing the theory of"living-law"and expounds the civil lawsuit mediation system in modern society is a kind of realizing form of judicial justice which has Chinese characters. Utilizing the analysis method of process and role, the author reveals the limitation of judicial judgment and expounds that the civil lawsuit mediation has the non-fungible value in realization of justice of concrete case and the mutual relationship of lawsuit mediation and judgment. Thirdly, from the angle of view of comparative jurisprudence, the author reveals the difference and general character between the civil lawsuit mediation in our country and the substitution for dispute-solving system through comparing the both and draws lesson from the compare. Fourthly, the article adopts procedure analysis method and role analysis method. It reveals the limitation of judicial judgment and argues that civil meditation system bears indispensable value from the view of realizing substantial justice of individual case and the interaction relationship between meditation and judgmentThe essay is divided to four chapters. The outline is as following: Chapter 1, the legal culture theory of civil lawsuit mediation. The author emphatically analyses the meaning of mediation and it exists background of legal culture and reveals the essence that the traditional lawsuit mediation in ancient time takes on harmony and non-lawsuit as aspiration. Under the pressure of strong power and ancestral force, the two parties in dispute bear oppression on spirit. It looks as if the two parties become reconciled but in fact there are all of compromise and non-alternative. Through comparing, the author points out that current lawsuit mediation inherit and overstep traditional lawsuit mediation in the aspect of legal consciousness and system design. One is the inheritance and development out of the judicial ideology. Traditional think on the meditation is"peacefulness is paramount". It roots from the obligation-oriented and nation-oriented value judgment, which means that individual claim shall submit to racial or nation benefits. While modern meditation is right-oriented. It respects and safeguards individual claim and disposal right. Second is the inheritance and development out of the system design. Old China has been adopting the system which administration merged with judicature from West Zhou throughout Ming and Qing dynasty. Comparing with the modern meditation system, traditional one is just the embryo of the modern system and it is neither system design nor right protection. Modern meditation emphasizes the neutral position of professional judges and takes the principle of legality and willingness. Such a system gives prominence individual's autonomy of dispute settlement by willingness.Chapter 2, the theory of the nature of civil lawsuit mediation. Firstly, lawsuit mediation is the dialogue and negotiation ensured by lawsuit process. It builds a bridge between the norm and the facts and makes the dispute resolving facing complex facts in actual life but not facing the abstract rules. It can make us better finding the disparity between the"law-on-paper"and the"law-in-act"and understanding what is the concrete dispute and the relative of justice. Secondly, lawsuit mediation is the contract on the base of full dialogue. The difference between lawsuit mediation agreement and contract on substance law lies in that lawsuit mediation agreement not only is the settlement to substance right but also relates to the change of right on process, that is ending the lawsuit and forming the legal effect such as judgment. Thirdly, lawsuit is the balance of individual autonomy and regulation of law. Individual autonomy reflects the party's autonomy and is the settlement right belonging to parties. Legal regulation is the examination and evaluation to the contents of mediation through the mediation process. Lawsuit mediation just realizes the justice in concrete case through the mutually effecting between the individual autonomy and legal regulation.Chapter 3, theory of civil lawsuit mediation's value. Justice is the lofty ideal that the human society diligently strives after. The concept of justice relates to right and obligation, so it closely keeps in contact with the concept of law. On the meaning of jurisprudence, justice is the value goal of legislation and judicature. The procedural justice of lawsuit mediation is embodied in the maximum level participation of the parties and the neutrality of the conciliator in process and the proper mediation process. The substantial justice of the lawsuit mediation is embodied in that the foundation of mediation is not only the legislation of the state but also the factors of morality, custom and human sympathy. It doesn't limit to solve the existing dispute, but also faces to the new round association and cooperation in the future. It means not only that the dispute was settled completely and the justice in concrete case was achieved finally, but also the beginning of relation of the two parties from opposite to cooperation. In short, lawsuit mediation maintains the elasticity of the private autonomy and increases the rigidity and compel of the country's intervene in the area of judicature. It embodies the institution's beauty of temper force with mercy.Chapters 4, coordinate theory of civil lawsuit mediation and judgment. Lawsuit mediation embodies the mutual condition relationship between the parties'settlement right and the court's judgment right on the design of process. Just because this relationship, the two dispute settlement ways of lawsuit and judgment that are completely different on theory mutually act and restrict in fact. In this chapter, the author utilizes the theoretic frame of analysis dispute settlement process, which was originated by Mr. Penglaixiaoxiong and reveals the harmonious relationship of mutual transform and superiority supplement through anglicizing the hearing process of a typical civil case. The author puts forward a tentative plan of establishing the dualistic lawsuit constitution about"judgment-mediation".In brief, this essay doesn't take on analysis and demonstration to lawsuit mediation on the layer of constitution as goal, but analyses the theoretic meaning back on the lawsuit mediation and demonstrates the unique value and function in the process of dispute settlement and harmonious society structure in modern society beginning with the constitution from different view of lawsuit mediation such as legal culture theory, nature theory, value theory and the coordination theory with judgment.