On The Historical Evolution And The Reform Orientation Of People's Mediation

The People's mediation refers to the self-ruling social activity for the partiesconcerned to settle the disputes in a reasonable and legal manner through clarifyingthe facts and standardizing the procedures under the presiding of the People'sMediation Commission with the State laws, regulations and polices as the mainevidence.Mediation, as a legal as well as cultural tradition, has a long history in China. Inancient China, the mediation covered the civil mediation, clan mediation, communitymediation and mediation by prefecture and country rulers. The moral concepts such ascomity, juste-milieu and avoiding litigation have played an active role in themediation of social conflicts and harmony of interpersonal relationships. However, itdiscouraged litigation and safeguarded the feudal hierarchy, which reflected itsbackwardness. For thousands of years, it has become an important composite ofancient Chinese culture to conciliate in the litigation issues, which has a long-termimpact on Chinese people's attitude towards litigation and concepts of settlement ofdisputes. In spite of the sweeping changes, mediation keeps playing enormous role inthe current society of China and remains as the first defense line for securing thesocial order and stability as well as the major element of modern legal system ofChina.With the transition and transformation from the planned economy to the marketeconomy, the people's mediation system of China has undergone considerable changeand reform with the current development. The form of organization has developedfrom the self-ruling organization to the social organization, and the directionphilosophy from passive mediation to active mediation with the means of mediationand prevention, aimed to treat the principal and secondary aspects. The means ofmediation has developed from the single method of persuasion and convincing to themultiple legal means, economic means, administrative means and ethic means. Thepeople's mediation has been listed as major content of the construction of democraticlegal system. The legal system construction of people's mediation has undergonequite great progress and the legal position of the mediation has been recognized.Nevertheless, there are quite a lot of defects and limitations in the people's mediation译文as compared with the requirements of current development of market economy,China's entry into WTO and integration into the international market, and the claimsof the parties in the current legal environment. The most predominant problem is thatthe mediation mechanism does not fit the market economy mechanism. The currentmediation mechanism of China does not make a clear definition of the courtmediation and the people's mediation, and they overlap in relations, functions andprocedures and do not make up effective complement. The legal position and effect ofthe people's mediation is not explicit, and the resolution of mediation is not directlyacknowledged by the court. In particular, there is not a specialized law to standardizethe establishment and alternation of the people's mediation, the position of mediatorand the professional procedures of mediation, which causes a vast liberty and randomin the work of people's mediation and weakens the working effect of the mediation.Therefore, the reform should be carried out in the undertaking of people's mediation.We should stick to the reform orientation into a market-based free, fair and effectiveeconomy, concisely grasp the legal principles of self-ruling of private rights based onthe free will and the civil rights of the parties concerned, and establish the network oforganization of people's mediation with social self-discipline. In specific, we shouldenhance the strength of legality of people's mediation, promulgate a complete Law ofSocial (People's) Mediation, sufficiently exhibit the principle of self-ruling by the willof the parties concerned in the mediation, upgrade the legal effect of the Agre...