Research On The Legality Of Court Meditation In China

This dissertation can be divided into two sections. The first section mainly discusses the basic theory concerning court meditation in mainland China. By utilizing the academic achievements in the previous section, in the second section, author puts forwards a few essential suggestions on the topic.Firstly, by using historical methodology, this treatise carefully combs through the chronicle of court meditation. Author tries to probe out the historical bases from the evolution of court meditation. Secondly, by utilizing the methodology of sociology, this thesis studies the macro foundations of court meditation. After that, by ways of positivist jurisprudence as well as process analysis, this paper also researches the parties, presiding judges, and courts who participate in that conciliation procedure. Through all these expounding, it is clearly showed that meditation by court not only is the favorable inclinations for judges, but also is a rational choice by parties which stems from their personal needs. Court meditation has political functions, which make great sense for the fulfillments of the Party's goal: the creation of a Harmonious Society. At the same time, court meditation will play a special role for the appropriate settlement of social disputes, and eventually to stabilize the social orders and public relations. It can also promote our country's legality development.Court meditation is a useful communicating channel between laws and social regulations.The conception of court meditation should reflect its basic qualities and characters. The understanding of court meditation's nature directly determines its procedural designs and the creations of its systems.The procedural as well as substantive dispositions of litigators are the fundamental qualities of court meditation. The persuasive and educational deeds of judges do not possess the natures of mandatory judicial power. It is incorrect to consider that court meditation is the consequence of the joint functions by party's dispositions and jurisdictions. The judges' functions such as mediating, evaluating, and affecting can not hinder the fulfillment of party's dispositions. However, there usually exists the possibility of interfering of official powers in that reconciliation process. In another word, the judicial reviews, conducted by courts, against meditation agreements are the indispensable components of that legal process.In this dissertation, author relates and analyzes the guiding principles of meditation. Free will is the basic directive principle in that process. Meanwhile,lawfulness is the former's necessary restriction. Honesty and sincerity should acts as the guideline for the parties in this settlement procedure. Finally, the notion of maintaining secrecy tallies with meditation traits and assuredly promotes its execution. Within the scope of present stipulations concerning court meditation, the so-called principle of authentication should be annulled, because it has many deficiencies in the aspects such as scientificalness, rationality, necessity, justification, characters of operation.The current enactments on court meditation are mainly the components of civil procedure law. That kind of legislation method has some technical defects. By that way, we can not effectively draw a clear line between trial and meditation, which will eventually lead to negative legislative as well as judicial results. Court meditation should be detached from the civil procedure code. Accompanied with some familiar things such as people's conciliations, should be jointly stipulated in a Unified Meditation Act. By that legislation, various meditations can efficiently and mutually cooperate with each other.Decided by its basic natures, court meditation has its unique composite parts, which means this dispute-settlement method can not be used for some special cases. These cases including: non-contentious cases without adversary parties, some cases precluding dispositions or at least restricting litigator's dispositions. The following viewpoint put forward by Taiwan scholars should not be used indiscriminately in court meditation: compromise of a lawsuit should reject the action of alteration.In different reform sketches, scholars usually mentioned the ideas to establish pre-trial meditation, to replace the court meditation with compromise of an action, or create independent mediators' organization within judicial process, to modify the current enactments which empower presiding-judge to charge the mediation activities. Author holds the point that pre-trial meditation can positively remedy the malpractices of people's conciliation and court meditation. Pre-trial meditation should established at an early date. However, because lacking substantive expounding, the negative attitude against present court mediation and presiding-judge's roles in that process can not be approved. That kind of improvement ideas can not attain the anticipating effects, and may result in new problems.Just as the above parts stated, judicial review is a component of court meditation, which has great influence on the ensuring free-will and lawfulness in the official conciliation. Judicial review can be invoked only by the agreement of parties. In that process, judge will inspect the parties' procedural and substantive dispositions, and eventually affirm or deny the meditation agreement.The design of court meditation's force should embody the basic nature of that official disputes resolution mechanism. It should also reflect the aims of legislators, such as the enhancement of judicial review. Consequently, the court meditation of our country should have broad effects. the author holds the opinion that: beside the force of execution, some other forces such as the bounding force against presiding judge, the incontestable formal force of judgment, res judicata (claim preclusion), the force of alteration, should all be recognized by the future court meditation. On the same matter, Taiwan scholars hold a doubtful view. However, for court meditation, there are some substantial defects existed in the issues of truth-finding. As a result of it, the law should not recognize the force of prejudgment for a later relevant case.It is a common thing for some abnormalities happened in the course of court meditation. As for the illegal meditation conducts of judges, parties should be entitled the right to file a challenge. As for full-force meditation agreement, the law should allow parties to rise a petition to start the civil retrial proceeding. Meanwhile, in the realms of moral rules, judicial administration, and relative criminal charges etc., the law should enact new restrictions for the judges in court meditation. When the court meditation and its results encroach on public interests or infringe other legal injunctions, beside the civil retrial invoked by parties, the law should also provide the possible tunnels for interference of public power, such as the retrial process started by courts or a civil protest raised by the procuratorate. When court meditation injures the rights or interests of outsiders', the law should permit that person to invoke civil retrial proceedings against the original litigators. It is a useful judicial remedy for the protection of outsiders' rights or interests.