The Modern Transition Of Traditional Legal Culture

With the starting point of the phenomena of compulsive mediation in our courts,this paper analyzes the process that under the mediation system of our courts,the power of judges decreases and the corresponding rights of parties increase in the modern transition of our traditional legal culture.This paper points out the necessary relationship between the modern transition of our traditional legal culture and the changes of power and right under our mediation system and holds that the relation of power and right should adapt to the modern transition of our traditional legal culture.Based on the above discussion,with the social investigation data,this paper testifies the phenomena that the power infringes the right in the current compulsive mediation of our courts,argues that the phenomena violates the social reality of flouring democratic rights awareness in the modern transition of our traditional legal culture,criticizes the mistake practices which ignore the social reality,magnify the mediation effect and persue the mediation rates unilaterally and holds that we should construct the mediation model leading by the parts,to realize the harmonious state of rights of parties and power of judges.The first part discusses our traditional mediation system by the officer of justice, analyzes its economic and traditional Confucian legal culture foundation and analyzes the state which the power of officer of justice dominates the right of party absolutely under this system.The second part discusses the initial stages of the mediation system.Our mediation system is the organic unite of our mediation tradition and modern legal spirit and is the sublation of traditional social judicial mediation.Its initial stage have the special function of buffering the conflict between modern legal system operation and traditional legal culture, getting rid of judicial plight and carrying modern legal system.Then this paper discusses that the value convergence of judges and parties is important basic to mediate successfully and analyzes the state the power serves the right and dominate rights relatively.The third parts discusses the develop stages of our modern mediation system.Our country is in the sharp transition period from traditional society to modern society which drives the modern transition of our traditional legal culture.This part analyzes the contradiction between compulsive mediation and rapid increase of current civil cases,flouring rights awareness of the parties,points out the approximately invariance theory of successfully mediated cases in certain period,demonstrates the limits of the effect of judges' mediation art and analyzes the harm of compulsive mediation.The fourth part discusses the perfection of our current mediation system.Firstly,this part discusses the two basic relationship of our mediation model,i.e.lateral relation of parties and vertical relation between judges and parties,of which the former is the core.Then,this part discusses the view that our current mediation model is leaded by judges in essence and analyzes the plight of our mediation under this model.Based on the modem transitionof traditional legal culture,this part points out the correct orientation of our mediation system, holds that we should construct party-leading mediation model by legislation,establishing the core status of the party in mediation,and eliminate the compulsive mediation phenomena existing in our court,to acclimate the modern transition of our traditional legal culture.