On The Reconstruction Of The System Of People's Mediation

As one of the systems of mediation, the system of people's mediation constitutes the complete system of judicial mediation of China with the court mediation and administrative mediation, etc. In all the systems, the system of people's mediation, which occupies the important status, is a legal system with the Chinese characteristics and called the"east experience". The system of people's mediation comes from the traditional culture of Chinese Nationality. The mediation system of China, which started from the slavery times of Western Zhou Dynasty and went through Qin Dynasty, Tang Dynasty, Song Dynasty and the Republic of China, gives deep-going impacts on the establishment of the system of people's mediation of the People's Republic of China. The mediation system in ancient China gives the positive impacts on the occurrence of the design of the civil dispute resolution mechanism of our country. In ancient China under the background of harmonious and united culture, people paid much attention to choose the mediation mode to resolve disputes, so the mechanisms and culture of resolving disputes by mediation with characteristics were established. With the long-term accumulation of such a mechanism and culture, the tradition of mediation is established in China. In the Period of New Democratic Revolution, the system of people's mediation showed the strong vital force. With the development of the revolution, it was greatly developed. In the Periods of the War Against the Japanese Invaders and the War of Liberation, the system of people's mediation was preliminarily established. After the People's Republic of China was founded, the legal status of the system of people's mediation was determined and improved. On May 5, 1985, the Organic Rules of the People's Mediation Commission promulgated by the State Council stipulates that the people's mediation commission is the mass organization of mediating the civil disputes under the villagers'committee and the urban residents'committee and is operated under the guidance of the grassroots people's government and the grassroots people's court. The grassroots people's government and its authority guide the routine work of the people's mediation commission that the judicial assistant is responsible for. The people's mediation has reached the peak period by the middle of 1990s. It plays the important roles in promoting the construction of socialist materialist civilization and spiritual civilization and building the harmonious society.With the development of the reform and opening and the market economy, the system of people's mediation is greatly impacted and challenged and the people's mediation suffers from the unprecedented difficulties. First, the quantity of mediation organizations and mediated disputes is decreased. Second, the mediated disputes are remarkably compared to the increase of the court cases and the proportion of mediation and lawsuit is reduced. However, in some western countries such as the US, more and more importance is attached to the non-litigant dispute resolution mechanism and it is applied in practice. There are the following reasons. First, the system of people's mediation faces the new situation in the period of social reform, the development of the market economy necessarily causes the varieties of the interest subjects and there are various and complex interest contradictions between the citizens. The citizens, legal persons and other organizations have their own interests in the market economic system, and especially in the period of reform of the system, all the contradictions are more prominent and the tends to the individual or collective interests are obviously strengthened. The interpersonal relations are transformed from the original proximity and mutual dependence to strangeness and mutual independence and even the simple exchange relations. The original working modes of the traditional mediator's persuasion, education and reasoning, etc. will not produce the original effects any longer. Such a change of the social organizational structure most directly influences the dispute resolving activities and the roles of people's mediation is weakened. Second, the thought of ruling by law causes the esteem for lawsuit and negligence of mediation. With the gradual establishment of the legal system of our country, a deflection to the"pure thought of ruling by law"occurs while the development strategy of ruling the country by law is publicized in society. The roles of mediation are despised, mediation is called"trying to mediate differences at the sacrifice of principle"and abandonment of the rights, which unavoidably causes the despise of people's mediation of the party concerned while the"pure thought of ruling by law"advocates to resolve disputes by lawsuit. Third, the most important are the problems of the system of people's mediation by itself such as lack of compulsory support of the mediation agreement, limited range of people's mediation and treatment of disputes and impacts of the people's mediator's quality on the effect of mediation, etc. With the social change and the legal reform, the new and higher requirements are presented for the system of people's mediation. It needs to perfect and develop the system of people's mediation to build the harmonious society, alleviate the pressure of judgment, reduce the judicial cost and development perfect the multiple dispute resolution mechanisms.Because the system of people's mediation plays the very important roles, is widely applied and has the intensive organizations to facilitate the use of the masses, with the strong economy and efficiency, and at the same time, the system of people's mediation is of strong adaptability of treatment to the new civil disputes, the reconstruction of the system of people's mediation is of great realistic possibility. Facing the present situation of the system of people's mediation, the judicial and administrative organs and even the people's governments at all levels have carried out the beneficial practice and discussion of the reform of the system of people's mediation. The author simply analyzes it and presents some suggestions on the reconstruction of the system of people's mediation of our country according to the change of the interest pattern in the period of social reform and the objective requirements of the country ruled by law on the basis of the above, for example, the property of the people's mediation agreement is further determined, some methods of the US and Taiwan can be referred to, the compulsory executive force is further entitled to the mediation agreement by determining the system, the people's mediation procedure shall be appropriately standardized. After the people's mediation agreement is entitled with the property of the civil agreement, the legitimacy and procedure of the mediation process of concluding the people's mediation agreement are very important, but the formalization of mediation is relative and limited and it is limited by its essence, that is, the informal property, so the standardization of the procedure of people's mediation can only be appropriate and it is unnecessary for it to have the strict setting of procedure like lawsuit and arbitration. Theoretically, the cases in which the party concerned has the right of free treatment when the range of received cases of people's mediation is appropriately expanded, that is, the disputes not prohibited by the laws and regulations can be mediated; therefore, the range of people's mediation shall be appropriately expanded to the cases of private prosecution stipulated in the law of criminal procedure such as insult and disparaging cases, cases of violence interfering the free marriage, abuse cases and infringement cases, etc. as well as disputes between the legal persons. The people's mediator's quality shall be improved to promote the specialization of the team of people's mediators. First, it is main approach of improving the mediator's operating quality to strengthen training. Second, the special legal talents shall be employed in society and provided to the grassroots team and the professional, vocational and young mediators and team of mediators shall be gradually realized. Finally, the relevant measures of assurance shall be established to assure the relative stability of the team excellent people's mediators and the principle of secret mediation shall be added. In the cases of people's mediation, some affairs that the party concerned does not want to publicize are often involved. If the party concerned is forced to publicize the process of mediation, the worry of the party concerned in thoughts is often produced and it is finally unfavorable to the mediation; therefore, the people's mediation shall be carried out in the undeclared conditions. The court entrusts the people's mediation organizations to mediate disputes and the special procedure of the judicial organ determining the people's mediation agreement are established to promote the connection of the court lawsuit with people's mediation.