Reflection And Reconstruction Of Judicial Mediation System

The judge mediation is one of the most characteristic systems in the civil lawsuit of our country. It usually has the good reputation of "The Fine Tradition"in the homeland and be praised for "The East Experience"in abroad. For a long time, the judge intermediation system legislation has been occupying extremely important position in civil lawsuit of our country and the judicial practice all the time. It has been highly regarded by the legislator, the judiciary and the academic circles. It is always the main way of winding up a case for the judge.With the diversification of the social values, the decentralization of the social structure and the contractrization of the human relations in society, not only the limited judiciary resource can't bear the heavy burden brought about by the expanding social dispute, but also the judge mediation that contains the inner crisis from the beginning has no way to face the request of legitimateness and justice in terms of the wake of the party's subjective consciousness. There is no denying that the judge mediation has brought the significant and active effect indeed to resolve the dispute timely and effectively, to defend political situation of the public stability and fine social order, to impel the process of the revolution and construction successfully. However, the system has brought up a new hot round phenomenon of judge mediation from the beginning of the new century. The whole nation, especially many grass-roots court, is in pursuit of the rate of winding up the cases blindly. Some dissimilation phenomena appears in the actual judicial practice, such as"blurring the line between right and wrong","boost the mediation by suppressing","suppress the mediation by judge","boost the mediation by delay". It assumes more and more serious trend, so the judge mediation brings in a lot of criticism and questioning. The system of judge mediation has appeared crisis.The article is guided by jurisprudence theory and combines with the judicial practice of judge mediation. The methods of historical inspection, social investigation, value analysis, logic analysis, and comparison research are used to explore the current situation of the system about the judge mediation, the cause of the system, the revolution and refinement, so that we can draw the outline of the system about the judge mediation that accords with our national condition as a whole. This will be benefit for revising the civil procedural law, refining the system of judge mediation, pushing the revolution of civil judice, which will have the important values of the theory and the practice.The paper, apart from the introduction and conclusion, consists of three parts:Part one, titled"current situation of judicial mediation system", mainly introduce the concept and traits of judicial mediation system, analyze the policy background, point out the crisis of preferring mediation.. By the concept and traits, we can know of the judicial mediation system. The position of judicial mediation system being change unceasingly in our country's legislation and judicial practice, has experienced three developing stages, that is, given first place to with emphasizing mediation to volunteer and legal stage, then to the stage of strengthen mediation again. Now most judge of the whole country like to choose mediation way to examine cases. For the purpose to increase the rate of mediation, the judge will certainly apply various means to promote mediation, even use some illegal means, which has exceeded allowable range of law evidently. The illegal means has no way to achieve legal purpose, and it is destined may produce negative influence to setting up judiciary authority, and also will do harm to realizing judicial justice.Part two, titled"analyses of judicial mediation system", mainly discuss the reason of judge preference meditation. Firstly, judicial mediation system have a long history, developing ceaselessly with the development of society, which manifests the value of itself, for example, it is able to respect the wishes of clients, create the harmonious atmosphere, and also being able to economize legal action cost more and so on. This is also the important reason that the judge chooses mediation, and the clients accepts mediation. Secondly, the judge prefers the system of mediation, single-faceted running after the rate of mediation, it has close relations with the abuse existing in the current judicial system in our country. Sometimes, that the court tries on one's own , the judge exercises on one's own judicial authority may accept the external factor effect and intervenes. That Party committee, Committee of Political and Legislative Affairs and government's interference affect maximal, simultaneous internal court leader and management system also may weigh to judge's trial. With the pressure from above aspect, the judge hearing a case besides being bearing a law now and then, urging the judge to choose the mediation. Thirdly, the litigants and the lawyers are important participator in mediation system, which have decisive effect to the mediation. But because the judge stays in the position controlling nature in trying middle, the litigants and lawyer agree to mediation scheme may not by volunteer. They have no choice but to do that. Finally, the upper defect of legislation is also the important cause to bring about judges preferring mediation. The judicial mediation system is the basic principle of the Civil Procedure Law in civil procedure; it is not only lack of scientificalness of legislation, more over it goes against the function of the people's court. The judicial mediation before being trialed violates legal procedures of current law, which also have contradiction with the legislation, and also have conflict with the open trial principle. The law requires that the judge carries out mediation on ascertaining fact and the basis distinguishing right form wrong. Since the fact and dispute are all already clear, we can't require that the litigant carries consulting with the counter litigant on legal rights and interests in order to reach a reconciliation agreement, which is inconsistent evidently in law.Part three, titled"reconstruction of judicial mediation system", mainly by analyzing the cause of judge prefer mediation, this paper gives us an idea that the standpoint of the judicial mediation system reform. As the saying goes, stone of his mountain can attack a jade. The judicial mediation system is not only exit in our country. Besides our country, a few other countries or areas also have judicial mediation system, some are very perfect, and they have accumulated comparatively rich mediation experience and have been worthy for us to draw lessons in the practice mediation. The improving and perfecting of the judicial mediation system is important component of civil reform of judicial affairs. Therefore, we ought to improving and perfecting the judicial mediation system according to the arrangement in civil reform of judicial affairs. Owing to this, the legal judicial mediation, must build on regulation of current laws and principles of the Civil Procedure Law in civil procedure strictly. In accord to the insufficiency of the judicial system, several further ideas of improvement have been brought forward: Change concept, to establish a guiding ideology of judge mediation; Work out unified "mediation law"; The judge fixes position with litigant doctrine mediates system; Strengthen lawyer's supervision.