On The Development Of Conciliation System In Contemporary China

As an important means of dispute settling, conciliation has a long history in China with the origin to be found in primary society. Throughout the two thousand years of feudalism in China, conciliation had been playing a great role in both the governmental and nongovernmental resolutions of civil disputes. Thus, it has a deep effect on nowadays dispute resolutions and social management. Besides these, there is a more persuasive reason for the author to take it as the topic of Ph. D. thesis, that is the current conciliation system in China originated in the times of New-Democratic Revolution led by Communist Party of China. Conciliation system not only has particular function and position in legal construction of China, but also carries much significance in the construction of a harmonious society. The court conciliation and the people's conciliation are the main forms of today's conciliation, and this thesis takes them as focus of research.In this thesis, the author tries to discuss conciliation system in two thread of thoughts. One is the historical development of contemporary conciliation system; another is the development of corresponding theories. The thesis consists of four chapters:Chapter one focuses on the issues of traditional conciliation. Though the contemporary conciliation system originated in the times of New-Democratic Revolution, it has a root in the ancient society of China. In this chapter, the author tries to give a comprehensive and general analysis to the traditional conciliation system, and form a frame of reference for the study on contemporary conciliation system. The traditional dispute resolutions of China show a distinct character of multiplicity, including the multiplicity of ways of settling and criterion, and conciliation is the most outstanding one. From the angle of traditional culture, conciliation is bound to be the choice of ancient China, and is a reflection on the traditional concepts. It's also the best way for local management in ancient China, and the best means for people to solve disputes among them. Taking root in the society of ancient China with constant changes, the traditional conciliation marked the social management with a distinguishing feature, and gave a profound influence on the behavior of Chinese people. And consequently, this system becomes the choice of contemporary China with the inevitable change of intension and extension due to the development of society.Chapter two gives a review to the coming into being of contemporary conciliation system and its development. Obviously, the development of court conciliation can be divided into four periods. The first period refers to the time before the establishment of People's Republic of China, especially the period of Shanganning Border Region. In this period, Maxiwu trial mode gave priority to conciliation, and contributed very much to the settling of civil disputes, the construction of government of the Border Region and the building of National Anti-Japan Union. During this period, because of following the mass line, conciliation system achieved a great success, and gave a foundation to the civil procedure system of new China. After the establishment of PRC, for the lack of corresponding legal system, the need of judicial officials and the improper orientation of the People's Court, court conciliation was still first choice in civil trial. And also because of the emphasis on the class struggle, court conciliation was oriented to solve the conflicts among people themselves and take the people first. During the third period, the court conciliation was stipulated in the Code of Civil Procedure (both 1982 and 1991) , it was regularized and achieved a rapid development. As the change of social conflict, the court conciliation emphasizes more on people first and respect to them, which embodies in the principles of free will and complying with law. The fourth period is from the beginning of this century to present. As a result of the economic development, the situation of judicial practice and the trend of international reform of civil justice, the court conciliation has become a significant judicial measure for the construction of a harmonious society with more regard and new progress. Compared with the court conciliation, the people's conciliation develops in a simple way according to the social changes. The people's conciliation originated in the labour movement before the establishment of PRC, and contributed to the union of people as well as the court conciliation. Since the establishment of PRC, the people's conciliation has gone through the stipulation, marginalization and prosperity. In the historical presentation, the author gives an analysis to the underlying social and political reasons.Chapter three discusses the development of both the contemporary conciliation system in China itself and its corresponding theories. Due to the up and down of conciliation system, the arguing on its theories has never stopped. In this chapter, the author firstly analyzes the practice of court conciliation around the year of 2002, and reveals the reasons for the different treatment to court conciliation in practice. Going further, the author systematically and theoretically probes into the compulsory character of court conciliation, which has been a hot topic among scholars. With the evaluation of those different proposals of the conciliation reformation, it points out the reform goal to be achieved in the future. As the major form of extrajudicial conciliation, the people's conciliation should be oriented properly both in system and function, thus achieves a suitable position distinguishing from the court conciliation in the modernization of law-governing. At the same time, as a notable character of culture and institution, conciliation influences on the other dispute resolutions, so taking the combination of conciliation and arbitration as an example, the author analyzes the influence and operation of conciliation in arbitration.Chapter four is about the author's consideration based on the historical research. It probes into the ideal and actual functions of conciliation in the construction of a harmonious society on one side, and on another side, presents a general proposal for the composing of conciliation system in the harmonious society.It says to be is reasonable, the needed is valuable. This rule also applies to conciliation system. The research on the changes of contemporary conciliation system and corresponding theories aims to provide more material for the study on the reformation of conciliation system.