On Civil Mediation System Of China

This thesis attempts to give some constructive suggestions on how to improve the civil mediation system in China through the analysis of the history evolution, the comparison with systems of other countries related and the present shortcomings, so as to exert its value and function fully.Part one mainly discusses the history and general situation of civil mediation system, the difference and relationship between mediation and judgment, the comparison of Chinese mediation system to related systems in other countries, and introduces the characteristics of civil mediation system in China: first, mediation is the fundamental principle in Chinese civil procedure, which runs through all segments of civil procedure. Second, the doctrines of mediation are voluntariness,legality,fully proved fact and discerning between right and wrong. Third, the judge is in a dominant position, namely, it is the judge who presides and guides the mediation procedure. Fourth, the mediation agreement should be examined and affirmed by the judge, otherwise will take no legal effect. Fifth, the mediation document has the same effect as written judgment after signed by two parties. There are both marked difference and certain relationship between mediation and judgment. The thesis also lists the mediation systems of other countries or regions, among which the representative ones are Japanese civil mediation, pretrial mediation in Taiwan, and mediation attached to court in the United States, which are all compared with the mediation system of China. Concerning the compromise systems of other nations and regions, the thesis enumerates the legislation of the United Kingdom, the United States, Germany, Japan, Taiwan and France.Part two discusses ten defects existing in Chinese civil mediation system that the author thinks: a) The expansion of judicial authority and weakness of the litigious right of the parties; b) The contradiction between voluntary mediation principle and judicial compulsion; c) The deviation of legality doctrine from the rules of mediation; d) The mistaken ideas in the principle of ascertaining the facts and discerning between right and wrong; e) Mediation isn't restricted to jurisdiction of trial instance; f) The excessively wide scope of the mediation application; g) The regulations of how the mediation paper comes into effect deviate from the general theory of litigation contract; h) The supervisory organ for mediation is far from perfect; i) The lack of civil rights protection; j) The imperfection of relief regulations.Part three expounds how to improve civil mediation system of China in detail. In the first place, reorganize and abstract the principles of civil mediation; in the next place, make it necessary to coordinate the relationship between litigious right and judicial authority, meanwhile emphasize and carry out the disposition principle; thirdly, reduce the area of mediation application; fourthly, regulate mediation manner, and separate mediation from judgement; fifthly, abrogate the right to go back on one's word, and make the invalidation of mediation agreement standard definite; sixthly, strengthen the post supervision mechanism; lastly, establish voidable system for civil mediation.Having the Chinese characteristic and practical value, the reformation of civil mediation system needs further research and practice. Just as Mr. Long Zongzhi has mentioned, we should pursue relative rationalism during the reformation of mediation system. Absence of the tradition of rule of law, Chinese legal construction is very difficult. Changing this situation need the efforts of every legal worker along with the practice from all possible angles. Moreover, it is important to tally with the actual situation of China and the policy of governing our country by both law and morality when we reform and improve the mediation system, in order to realize its contribution to dispute resolution, conflict elimination, solidarity improvement and stabilization upholding.