Reconstruction Of Court Mediation System Of China

The present thesis includes four chapters. For a long time, mediation by court is viewed as a fine tradition of Chinese civil trial, it is also considered as a fundamental principle of civil litigation and civil litigation law. To be objective, court mediation system plays an important role in developing the function of courts'"stop dispute", western countries praise this as "east experiences". However, in recent years, following the establishment of market economic system and the gradually improvement of citizen's law consciousness, the role of old mediation system has been declined day by day. The first chapter is about the historical origin of Chinese mediation system. It can be divided into three stages. In the first stage, Chinese have the tradition of "dislike litigation "since ancient times. Then this tradition is followed by border base area during the second stage. During this period, legislations and practical experiences offer a basic train of thought for new China's court mediation system, and these establish the foundation. In the third stage, the court mediation of new China is still the most important way to deal with civil disputes before "reform and open". However, after "reform and open", new problems come into being and the rate of settlement lawsuits decline dramatically. Scholars'criticisms to current mediation system come in a continuous succession. Judges also tend to settle lawsuits by verdict. In my opinion, the emergence of this phenomenon is caused by the follow four reasons. Firstly, the dramatic increase of litigation case is the direct reason. Secondly, since implementing reform and open policy in the eighties of twentieth of century, the all aspects of our nation's social lives have taken place world-shaking changes, and those changes strongly alter people's litigation views. Next, since the mid-ninety of twentieth century, the reform of trial mode has in a great extent changed litigation mode in China. At last, following the development of law education and beginning to see the effect of judge team's profession in recent years, professionalism in recent years, professional judges hold relatively high percentage. The second chapter discusses the abuse of current court mediation system of China and the needs for reform. By profound exploration, it is found that mediating judgment mode is no longer meet the needs of real life, this can be fundamental cause of implementing forcible mediation mode, and the independent character of mediator's identity is the direct inducement. The third chapter compares the relatives systems home and abroad. Be analyzing foreign countries'court mediation system and compromise lawsuit systems, the abuse of our country's court mediation are further discussed. Meantime, an interesting conclusion has been found, that is the reconciliatory rates of "verdict mode"trial process'litigation in some countries are higher than the rate of closing case by mediation in China. Furthermore, the separation between mediators and judges is the biggest difference between reconciliation by verdict aboard and mediation system home. The fourth chapter discusses the reconstruction of Chinese court mediation system. This section is also the most important part of this paper. On September16, 2004, the law of "the regulations about people court's civil mediation issues of the supreme people court"was issued. The author believes that the promulgation of the law does not mean to end the reform; on the contrary, it will bring this discussion of trial ideas into a higher level which is changing from establishing the specific system to whether separating or judging. I think that both macro and micro aspects need to be discussed if we want to rebuild our court mediation system. Firstly, the mediation system should not be abandoned in China; this is because it conforms to our traditional law culture and meets the demands of justice and efficiency of market economy. Secondly, we should understand the relationship between mediation and trial correctly, position court mediation system in our country's litigation procedures accurately. We should perfect the regulations and systems of identifying and questioning evidences, giving proof responsibilities, over talking and directness. We should also speed up the pace of trial procedure from "mediation mode"to "verdict mode". Lastly, in micro view, it brings forth four measures to amelioratemediation system. There are following three specific measures. 1.We should implement separating mediation and trial system thoroughly. There are two reasons. First, it is often very easy for judges to make forcible contents during their mediation in our current system environment. Second, judges are also mediators; this identity is harmful for utmost developing the values of civil litigation procedure. 2.The law of discerning between right and wrong, investigating the fact before mediation should be abolished. First, it does not conform to the purpose of civil litigation. Second, the truth of law of civil litigation's pursuits often does not conform to the reality, sometimes, the real fact cannot be found out. 3.A Clear regulation, which both parties should be present when mediating, should be made. We should strictly forbid mediation by "back by back".