Research On The System Of Court Mediation

Court mediation is a way of settling dispute, in which litigants make an agreement by voluntary consultation under the presiding of the trial stuffs. The current mediation system criticized the content that represented the concept of feudal ethics and class rulers' will. meanwhile it inherited and transformed the good components of the traditional nongovernmental mediation. The vitality of the court mediation system is based on our traditional culture which has a long history. Not only does the court mediation system reflect the principle of autonomy, but also caters for people's pursuit of the pluralistic values in the market economy.This dissertation is divided into six chapters, which comprise the summary and the history of court mediation system together with the current mediation system in China, and its advantages and defects. Meantime, the comparisons and contrasts of the court mediation system between different countries and Taiwan as well as its reform and improvement in China are also included.The first chapter is about the summary of court mediation system in China and the author summarized the system macroscopically. The prominent feature of the court mediation is that the judges would persuade and mediate the parties to compromise and to reach a consensus. It's an important way of resolution of disputes besides adjudication, and it has different function from adjudication.The second chapter is about the history of court mediation system in China and the author reviewed its development systematically. The development of mediation system clearly reflected its economic basis and its humanistic characteristic from the current court mediation system of our country, dating back to the most primitive mediation system. After many years of development, the notion of mediation takes deeper roots in Chinese people's minds. Although the structure of our society has changed fundamentally, the notion of mediation still affects people's behavior. It's the motive force of the development of the court mediation system in China.The third chapter is about the current court mediation system in China and detailedly the author stated the regulations of court mediation according to the Civil Procedure Law. The judges should try to mediate the disputes following the principle of voluntary and the principle of legitimate when trialing civil case. if it failed, a verdict should be announced as soon as possible. The court mediation system is brought into the system of civil procedure in our national legislation, in which court mediation system has a wide range of application. No matter it's a civil case or an economic case, no matter it's a personal rights case or a property rights case, no matter the subjects of the legal relationship are citizens or legal person, no matter it's an ordinary procedure or summary procedure, no matter it's the first instance procedure or the second instance procedure, as long as there are more than two parties, court mediation system could be applied.There are mainly three principles in the system of court mediation: the principle of disposure of the rights, the principle of legitimate and the principle of finding out the fact, distinguishing right from wrong. These principles have aroused bitter debates in judicial practices, and become the highlights of the judicial reform. Even though the court mediation system is criticized constantly, and the ratio of winding up case by mediation has dropped, it's still an effective means of resolution of civil disputes. Court mediation is still contributing to the national stability and social harmony.The fourth chapter is about the advantages and problems of court mediation system in China and the author analyzed the system deeply from the two aspects. Court's trial is confronting unprecedented new situations: the increasing of the amount of disputes and the hardness of the implication, which are all troubling courts constantly. There are several advantages of court mediation, for example: the freewill of the litigants, the under wraps of the mediation, the flexibility of the procedure and the low cost. But, there are also several obvious disadvantages in court mediation system; for example, it overly emphasizes the finding out of the fact and distinguishing right from wrong, the shortage of core content of mediation regulation and the defects in the mediation procedure. These problems may be caused by the following three factors: the conflict of the notion of the rule of law and the mediation system, the conflict of the procedural of the trial procedures and the flexibility of the mediation system, the coincidence of the mediation procedure and the trial procedure, which makes judges dual status.The fifth chapter is about the comparison and contrast of the court mediation system in different countries. After research and comparison of the mediation system in USA,Japan,German and Chinese Taipei, as well as the ADR system, the author has found the similarities and differences. The similarities are: first, judges are apt to settle disputes by mediation. Second, mediation system is used in a wide range. Third, the result has binding force. The differences are: first, in different countries, the status of mediation systems is different. Second, the status of judges is different. The author noticed the defects in our mediation system which had been avoided in other countries'legislation, so we should make clear of our orientation of the perfection of our mediation system referencing their experience.The sixth chapter is about the reform and improvement of court mediation system in China. Based on the analysis of China's mediation system and taking the conditions of our country, the author recognize the significance of the mediation system. The author also brings forward three proposals to refine our mediation system: sufficiently guaranteeing the right of disposition of the litigants, reforming the pre-trial procedures, setting up the litigant incentive mechanism.Eventually, the author drew a conclusion that the advantages of court mediation are flexible, convenient and efficient. These advantages could make up the disadvantages of trial, which are time consuming and inefficiency. It could save judicial resources and overstock of cases and other problems, which courts have to deal with. In the process of t deepening the reform of the mode of civil trial, there appears the trend of contempt of mediation, the status of mediation in litigation has been jeopardized. Looked upon mediation system from the value orientation and the need of judicial practice, it does has the strong vitality as an important litigation system. There are many defects in mediation system which arouse the design of the specific regulations. We should let it contribute more in the resolution of disputes in the civil field by the reformation and refinement of it.