On Establishment Of Mediation Before Trial System And Litigation Reconciliation System In China

Civil litigation mode can affect the achievement of its objectives.A scientific and reasonable litigation mode in line with national conditions is able to make the litigants more initiative,harmonious and orderly in civil proceedings,bring civil procedure into full play, and promote the achievement of its objections.On the contrary,an unreasonable one will hinder the achievement of the objections.China's existing Civil Procedure Law provides plural objections,such as protecting the litigant's rights,ensuring the court correctly exert its authority,settling disputes and maintaining socio-economic order.,To achieve all these objections,a corresponding civil litigation mode must be founded.The existing "merger of the mediation and trial" litigation mode has led to the conflict of trial and mediation,aroused mediation function's expansion and trial function's contraction, consequently been followed with a "conciliation" trials,which runs counter to "procedural justice" of the legislative goals of the civil procedural law and will confuse the boundaries of the trial and mediation.It has made the judge at the same time play both roles of mediator and adjudicator,which breaks the jurisdiction principles of neutrality and passive.Under such a litigation mode,judges often for their own interests mediate by a strong hand,which inevitably leads to missing of judicial legitimacy.Therefore,in the theory and practice profession,it is a common voice to reform China's court mediation system.But,there comes a heated debate in the academic area about how to conduct the reform.The representative viewpoints include the following three:to improve the merger of the mediation and trial,to cancel mediation and to perfect reconciliation,and to separate mediation from trial while found reconciliation. This article holds that the key of China's court mediation system reform is to achieve "mediation and trial separation" in the litigation system,so as to purify mediation and trial, construct a reasonable and diversified mechanism of dispute settlement.The establishment of China's market economy,the increasing consciousness of individual right protection,the inheritance of the traditional ideological and cultural,etc.makes it necessary and real possibility to establish "mediation and trial separation" litigation mode in China.Therefore, this article advocates to establishing "mediation trial separation" litigation mode,further more to establish the "mediation before trial" and "litigation reconciliation" system,so that the litigation and non-litigation methods get begin interaction in their ways,in accordance with their own characters,laws,procedures.This paper takes the Court mediation system of our country as research object,laying a stress on the reform of existing "merger of the mediation and trial" litigation mode,aiming at establishment of "mediation and trial separation" litigation mode,further more of "mediation before trial" system and "litigation reconciliation" system.The paper is composed of three chapters.Chapter One carries on analysis to the present situation of our country's Court mediation system,emphasizing on criticism of its drawbacks.Chapter Two makes other relevant commentaries on our country's court mediation system,providing reference for system designing.The last chapter,at first makes an analysis of the necessity and possibility of our country's court mediation system reform,paving a way for later system designing. Then,some concrete and feasible legislative suggestions are given for establishing "mediation before trial" system and "litigation reconciliation" system under the "mediation and trial separation" litigation mode.Moreover,at last,tackles some possible problems the new system may confront.