A Study On Victim-Offender Mediation System

At the beginning of 21th century, several victim-offender mediation (VOM) programs were carried out by the local procuratorates in China to deal with some minor criminal cases as judicial reformatory measures, which become more and more popular and catch much attention. VOM means the parties of the offence communicate with each other peacefully to find resolutions to restore damages and hurts caused by offences in a conference presided by an impartial mediator. If the offender can confess, apologize honestly, compensate damages and the victim offers forgiveness, the offender is accordingly given a commutation of punishment, probation or a removal of criminal accusations by judicial bodies. It is one way of power and right cooperating in treating some offences, mutual dialogues substitute for adversary proceedings. The nature of VOM is dealing with criminal cases by civil compensations instead of imposing imprisonments or the results of civil compensating influence application of penalty finally.In the perspective of VOM, an offence is not only regarded as a violation of penal code, but also an infringement to the victim. Those who were impacted by the offence should have an opportunity of taking part in resolving in order to meet their individual needs. The VOM programs pay much attention to victim's material damages and spiritual hurts, but the offender is also encouraged to reintegrate to community if he/she mends his/her way actively, such as making an apology, compensations and penitence. Both victim and offender are equally treated during the mediation process. It emphasizes the restoration of victim's rights and esteem, offender assuming responsibility actively, reintegration of offender, restoration of social relationship and reestablishment of community safety. The offender's reintegrating community is much more important than his imposed penalty of imprisonment if he can really regret for his faults.In main western countries, the restorative justice movement began in the mid of 1970s. It originated in the background of the movement of victim protection, the enlargement of non-penalization policy and the popularity of community corrections. VOM process is a mostly adopted one of restorative justice. Even though VOM conflicts with the principle of equal application of the criminal law to anyone committing a crime, the principle of assumption of innocence, the principle of suiting punishment to crime and criminal responsibility, the principle of a legally prescribed punishment for a specified crime, and causes some impacts to menace of penalty and criminal procedural justice to some extent, it meet with the theory of harmful justice, the theory of parties'participation, the theory of restraining criminal law, the theory of litigation contract, the theory of individualization of penalty, the theory of new social defense and the theory of restorative justice. The reason why the parties decide to accept mediation and the process wins popular supports is that psychogenesis of Christian forgiveness and balance of costs and the psychological needs of narration according to western scholars'analysis. The main processes of mediation in western countries are victim-offender mediation, group or family conferences and sentencing-circle. In the light of several authoritative investigations, victims, offenders and their relatives and the community representatives are satisfied with mediating processes and results. VOM play an important part in preventing recidivism and mitigating the stressful relationship between victim and offender in western society.In China, VOM system began to be applied to deal with minor criminal cases since ancient Xizhou state. The judicial tradition was kept down for thousands of years. But it often ignored the difference between civil cases and criminal ones. What the authorities most concerned was the resolution of disputes. During modern times, especially in the democrats revolutionary districts, many kinds of offences could be resolved through VOM, some cases even had to be gone through mediation before formal trial. In the Kuomintang Governmental districts, VOM system existed but was restricted to a few kinds of minor cases. The traditional VOM system of China was corresponded with the system of agricultural economy, Chinese traditional legal culture, people characteristics. The value orientation and procedural model of Chinese traditional VOM system was different from the western VOM system in nature. The state power led the mediating process, the decision-making power of the offence parties was limited, the individual rights and interests were second to public interests and the stability of social order. The VOM system was a supplementary part to formal system of criminal justice. Chinese traditional VOM system was never controlled or inspired by any kinds of religions, but deeply influenced with thoughts of harmony, thoughts of non-litigation, virtue of loyalty and forgiveness, views of friendship more important than interests and tradition of ruling by accustom.Shortly after the foundation of new China, some minor criminal cases can be treated with mediation by the People's Mediating Committee on the principle of parties'own accord. The private prosecutions and incidental civil actions could be also resolved through mediation by the courts according to the law. A few years later, VOM system for minor criminal cases those should be prosecuted by prosecuting officers was suspended. Accompanied with reform and opening policy carrying out all over the country, crimes those havoc public safety order increased year after year. Even the severe penalty policy couldn't control the crime trend. The criminal policy of leniency and astringency properly applied was brought forward by the Central Committee of Politics and Law. The People's Supreme Court and the People's Procuratorate enacted rules for implementation respectively.At the beginning of 21th century, the Procuratorates of Shanghai, Beijing and other provinces launched VOM programs as experimental programs to deal with minor cases of injury. The current VOM system is similar to traditional mediation model, but the core value of mediation is quite different from the traditional one in the context of restorative justice. Because much theories and experiences of western VOM were introduced into our country, the interests and rights of both parties are prior to the resolution of disputes. The wiliness of parties is the basis of mediation process, but the mediator still dominates in the dialogue situation. He not only analyses legal responsibility, give moral lessons, persuades both of parties into making peace but also help to make the final agreements.The VOM system revived in China after such a long time because of the background of micro-adjusting of social controlling means and the times topic of constructing harmonious socialist society. Its legal context includes the influence of restorative justice movement in foreign countries, victim's actual needs of right protection, implementation of the policy of lenience and severe penalty properly applied respectively, mitigating the conflicts between the equity and efficiency of criminal justice and experimenting new ways of judicial reforms.In recent years, the rates of private prosecutions and incidental civil actions to be mediated to resolution always keep so high. The experimenting mediation programs of minor criminal cases which can be prosecuted by prosecutors also increase rapidly. Although the current VOM programs have to face some dissents or objections from the criminal theoretical world and the judiciary world, the parties, the judiciary organs dealing the case and the society benefit a lot from successful mediations. Unfortunately, the development of experimenting mediation programs encounter some adverse environmental elements such as statutory absence of criminal mediation, retributive ideas of the public, the low compensating ability of the offender, the belief crisis of judicial authority and the evaluation system of judicial work.China is experiencing a social transformation now. The social disputes become much more serious than ever before. The crime increasing trend is hard to control in a short time. In author's opinion, the VOM system can play an important role in the special prevention of crimes, especially for minor criminals and those negligent criminals, for the mediating resolution will give them a chance of assuming legal responsibility actively for the victims and the society and putting themselves right after committing crimes. Although the justification and necessity of the VOM system is beyond any doubt, the current mediating processes of the local judiciaries are quite different from each other. It actually influences the validity and the authority of VOM in the name of judicial reform.In author's opinion, it is necessary to regulate and systemize the VOM process as soon as possible. In order to protect the parties'rights, the right-protected VOM model is more proper than the power-dominated one. The protection of the parties'rights is much emphasized in criminal justice in modern world. If the judiciary organs only maintain the mediating order and review the agreements and the powers for the VOM can be checked and balanced also, the parties can enjoy their rights sufficiently in the direction of the judiciary. The theoretical routes for regulating the process of VOM are establishing the basic principles of mediation, scoping the kinds of cases to be mediated, stipulating the applying conditions for mediating and recognizing the validity of mediating resolutions by adjudications.