On The Negotiation In Modern Legal Procedure

The basic meaning of negotiation is to reach a consensus through consultation.Consultation as a way of communication decides that equality and peace are the two basic values of the negotiation. It should be said that these two values only can be realized in the modern society, although the realization is just a formality. An equal and peaceful negotiation might exist before modern society, but the existence was not universal, because human subjectivity was not awakened in that time. The human subjectivity has been affirmed after mankind entered the modern society, so value diversification has become a common phenomenon. It does not have a unified standard of value judgment in a society of value pluralism. As a result, value conflicts have become a norm. How to resolve the conflicts is a difficult problem which every modern country has to face. It is feasible to solve this problem by modern legal procedure.The modern legal procedure can provide a platform on which all parties to the conflict can carry out peaceful dialogue and equal consultation. With the protection of legal procedures, an equal and peaceful negotiation can be achieved. The reason for the negotiation can solve value conflicts are that it can promote the parties to reach a consensus through consultation and dialogue without any preset evaluation criteria. The modern legal procedure displays not only a set of way, method, order, steps, but also a relation dimension which is characterized by interactivity. This is the reason why the modern procedure can bridge the value conflicts, and is the essence of the modern procedure.Negotiation is the essence of modern legal procedure. Procedural justice requires that the negotiation itself should be in accordance with the standards of Justice.Negotiation of course has its extrinsic values, but it should be more in line with its intrinsic values. Equality and peace are the two basic values of the negotiation. In addition, the negotiation should also have such as reciprocal, rational, full, effective,neutral, autonomic, timely, stoppable, and the dignity as the ultimate concern. These are the intrinsic values of a Justice negotiation.From a practical point of view, the key to building the rule of law is to control the public power, and the most important means of control is the legal procedure. Due to the restriction of the negotiation, the operation of the legal procedure is not expressed as a one-way operation of power, but a Co-Government on the basis of dialogue and consultation between the power and the right. In the face of the reality of modern social value pluralism, the rule of law should be constructed through legal procedure, because of the existence of negotiation in the modern legal procedure.Chinese procedural rule of law is lack of negotiation, which is reflected in the legislative fields, administrative domain and judicial fields. That is because the Chinese legal culture is a power dominated culture. The power is so strong, that a negotiation between the power and the right is difficult to form. At present, the characteristics of modernity become more and more obvious. China also needs the construction of negotiation mechanism, which needs to balance the relationship between the power and the right. This is not only the need to bridge the value conflict to ease the social contradictions, but also the need to establish the legitimacy of power in modern society.