| In the process of social development,disputes exist objectively.China is in the period of social transformation.The transformation of economic structure,political structure and social structure has brought about the pattern of diversified interests,diversified civic values and diversified social subject relations.In this context,disputes are characterized by diversified subjects,causes and types.Different ways should be adopted to resolve disputes with different attributes.Diversified dispute resolution mechanisms emerge at the historic moment,and commercial mediation develops gradually under this background.Based on whether the parties themselves have the control over the outcome of the dispute settlement,the dispute settlement methods can be divided into autonomous dispute settlement and other-governed dispute settlement.The way in which the parties themselves control the outcome of the dispute is the autonomic one,and the way in which the third party decides the outcome is the other-ruling one.The commercial mediation system studied in this thesis belongs to the civil dispute resolution mechanism,which is an important part of ADR dispute resolution mechanism.It is the most fundamental position in the whole dispute resolution system and the first settlement of disputes by relying on social forces.The ability of social autonomy,to a certain extent,determines the ability of the society to resolve disputes by itself.The stronger the ability of the society to deal with disputes,the disputes can be solved at the first time of settlement.In this way,the disputes will not develop to a more intense direction,and there is no need to solve them by litigation or other means.Therefore,the ability of social autonomy to a certain extent determines the ability of a society to resolve disputes.While pursuing judicial justice and public credibility,judicial reform should also attach importance to the growth and cultivation of social self-dispute resolution mechanism,which is of great significance for promoting good governance and building a society ruled by law.Commercial mediation is an autonomous dispute resolution mechanism that not only meets the needs of domestic development but also follows the international trend.The United Nations Convention on International Settlement Agreements resulting from Mediation(also known as the Singapore Convention on Mediation)provides an international trend for the development of commercial mediation in China.The domestic judicial reform and the policy orientation of non-litigation dispute settlement mechanism provide historical opportunities and development impetus for commercial mediation.In this context,this thesis analyzes the problems and causes of commercial mediation,and tries to further promote the development of China’s commercial mediation by putting forward feasible suggestions and legislative programs.In terms of theoretical exploration,this thesis analyzes the connotation of disputes and dispute resolution,and points out that in national governance,the rule of law is the basic strategy of governance,and the rule of law and social autonomy influence and depend on each other.The rule of law should reserve space for social autonomy,which can promote the realization of citizens’ democratic rights,and the rule of law is the guarantee of social autonomy.From the perspective of right relief,the formation and development of dispute resolution mechanism has experienced dynamic permutation and combination from pure private relief to public relief and then to self-relief.Litigation and arbitration are both important forms of public relief,which embody the I-You-He main body structure of the trial.However,not all disputes need to be settled by courts or arbitration institutions,not all disputes are suitable for settlement by courts or arbitration institutions,and not all disputes solved by courts or arbitration institutions can achieve the purpose of relief or achieve justice.Therefore,mediation plays an important role in making up for the lack of judicial relief.And the mediation of court or arbitration procedure is conducted in accordance with the principle of mediation according to law.Most of them are judges or arbitrators who serve as mediators and obey the uniform rules just like trials.They have gradually become judicial.Court mediation or arbitration mediation as a part of the judicial system,the rules and procedures of mediation are gradually losing their autonomy under the judicial socialization movement.The essence of the right remedy is the spirit and value of the right subject or the right holder’s self-remedy.In this thesis,it refers to the qualification and ability of the right subject to resolve the dispute by himself in the conflict according to the specific rules.Private relief is denied because of its emphasis on individual justice or substantive justice of results,public relief,especially judicial relief,is severely condemned for its excessive pursuit of procedural justice,while self-relief is just a form between private relief and public relief that emphasizes both subject autonomy and public rule of law.The theory of self-relief tries to restore the qualification,ability and confidence of the disputing subject to resolve the dispute by itself,making the disputing parties become the subject of the dispute settlement rather than the object of the trial or judgment.At any time,it is necessary for the benign development of society to reserve space for the right subjects to resolve disputes by themselves,so as not to make the dispute subjects fall into the state of losing the judgment and initiative in dispute resolution.Therefore,self-relief needs to be rediscovered,recognized and revived.However,advocating the revival of self-relief does not exclude the existence of public relief,especially judicial relief.Moreover,the consensual,voluntary and consensual meaning advocated by self-relief does not mean to exclude the coercion of public relief completely,but to reduce the coercion to the minimum or to the final relief path.Therefore,it involves how to deal with the relationship between self-relief and public relief.Because judicial relief is the main form of public relief,it means how to deal with the relationship between self-relief and judicial relief.In the modern legal system,we should not only attach importance to the authority of judicial relief,but also attach importance to the role of self-relief,so as to form a benign interaction between judicial relief and self-relief.Through the settlement of disputes in social autonomy,we can realize the co-governance of multiple subjects and finally lead to the good governance of social governance.In terms of practical exploration,this thesis focuses on the overall development status of China’s commercial mediation,analyzes the role positioning and nature of the three main bodies of commercial mediation,namely the court’s commercial mediation,arbitration commercial mediation and civil commercial mediation,and makes an in-depth discussion on the procedures,rules and effectiveness of commercial mediation.It is suggested to reconstruct the commercial mediation system through legislation.And from the aspects of top-level design,the main body,procedure and effectiveness specific system design scheme is put forward.The first chapter of this thesis first expounds the basic theory of dispute generation and dispute resolution,analyzes the overall development of commercial mediation in China by comparing the development process of commercial mediation in the international perspective,analyzes the characteristics of the "commercial" subject from the role rules,and discusses the subordinate status of commercial mediation under the property of right relief from the choice of the way of dispute resolution of the commercial subject.The second chapter mainly expounds the author’s confusion about the nature and positioning of the three mediation subjects: court mediation,arbitration mediation and civil mediation.Through practical cases,the author analyzes the three forms of court mediation,arbitration mediation and civil mediation one by one,and summarizes the existing problems respectively.The author believes that court mediation and arbitration mediation belong to the form of public and quasi-public relief.The former has the situation of "voluntary mediation",while the latter has the problem of arbitrator serving as mediator,which is similar to the judgment.Only the civil commercial mediation embodies the essence of self-relief and really plays the role of social autonomy.The excessive judicalization of court mediation and arbitration mediation actually deviates from the direction of autonomy,and hinders the development of social autonomy and commercial mediation to a certain extent.The third chapter mainly expounds the author’s reflection and discussion on the conflict between the autonomy of commercial mediation procedure and procedural justice,and the compatibility between autonomy of commercial mediation procedure and rule of law.Through the procedural characteristics under the "anti-procedural appearance",the author emphasizes that the current commercial mediation procedure seems to embody a high degree of voluntary and informal,but actually there is a behavior pattern of mediator controlling the mediation process.Even if there is no complete nature of judgment,it also embodies the functional characteristics of quasi-judicature to a certain extent.However,the conflict between procedural justice and procedural autonomy will occur if the party is given too broad disciplinary authority.Therefore,this thesis puts forward the question whether specific rule of law should be adopted to restrain commercial mediation in the mode of behavior and procedural rules,and if so,how to give consideration to the relationship between autonomy and rule of law.This thesis holds that there is no contradiction between the autonomy of commercial mediation procedures and the rule of law,and it is also a feasible path to form a variety of normative systems by multiple subjects under the guidance of the general principle of unity,which not only reflects the autonomy,but also takes into account the requirements of the rule of law.The fourth chapter expounds the author’s confusion about the effectiveness and implementation of the settlement agreement in China’s commercial mediation.Starting from the distinction between the mediation agreement and the settlement agreement,the author focuses on the analysis of the effectiveness and implementation of China’s commercial mediation in theory and practice.It holds that under the premise of realizing the autonomy of the subject and the autonomy of the procedure mentioned above,If there is no national compulsion to guarantee the result of mediation,the final enforceability of the settlement agreement cannot be achieved.Especially under the background that the Singapore Conciliation Convention enforces international commercial conciliation to be transnational enforceable,the effectiveness of China’s commercial conciliation and the enforceability of settlement agreements are faced with many difficulties,and these difficulties are deeply analyzed and dissected.Chapter five discusses the development path of commercial mediation on the premise of analyzing the subject,procedure and effectiveness of commercial mediation,that is,while fully realizing social autonomy,commercial mediation still needs to be protected by law through legislation.This chapter analyzes the legal origin and existing problems of China’s commercial mediation legislation,thinks that it is necessary to carry out separate legislation of commercial mediation,reconstruction of commercial mediation system,and puts forward preliminary discussion and suggestions on the necessity,urgency,legislative principles and legislative mode of legislation.The sixth chapter,based on the analysis of the fifth chapter,puts forward the concrete measures to construct the commercial mediation system,that is,after strengthening the legal guarantee of commercial mediation,how to put forward the concrete system design for the commercial mediation legislation from the four aspects of top-level design,subject construction,procedure specification and effectiveness guarantee,so as to realize the combination of the autonomy of commercial mediation and the rule of law.The conclusion of this thesis is that the development of commercial mediation in China is still in the initial stage,facing many problems such as mediation subject,mediation procedure,mediation effect and so on.For such a highly autonomous way of dispute resolution,whether it needs to be constrained by legislation,and how to balance its autonomy and standardization in legislation is an urgent problem to be considered.The author holds that commercial mediation,as a typical form of self-relief,should first give full play to the autonomy of both parties in the dispute and solve the dispute through negotiation and mediation to the maximum extent.Secondly,when the parties refuse to perform or delay in performing the settlement agreement reached through mediation,certain judicial relief can be used to protect it.But judicial relief exists only as a form of last resort.As for how to effectively combine self-relief and judicial relief to make commercial mediation not only flexible and autonomous,but also effective and binding,so as to realize the perfect combination of autonomy and rule of law,we should start from legislative construction and specific system design.Firstly,we should make separate legislation to guarantee the effectiveness of commercial mediation,and then give it a high degree of autonomy through specific system design.On the premise of fully realizing autonomy,judicial relief is used to restrict its effectiveness.Specifically,it is to make commercial mediation as an independent way of mediation,separated from the existing court mediation and arbitration mediation.The separation here does not exclude the use of commercial mediation by courts and arbitration agencies,but separates mediation procedures,mediators and the mediation agreements from the personnel and procedures of courts or arbitration agencies.When the court or arbitration institution needs to mediate the case,the case shall be entrusted or assigned to a special commercial mediation structure,which shall use its own mediation procedures and rules to mediate the dispute and promote the reconciliation between the parties.When the settlement agreement is not performed or delayed,the court can seek the final relief,that is,by confirming the effectiveness of the settlement agreement,the commercial mediation can be given enforceability,so that the commercial mediation will become a way of dispute settlement that not only gives full play to the advantages of self-relief but also has the protection of judicial relief. |
PDF Full Text Request