On The System Of Docking Litigation And Conciliation

The diversification of benefit of Modern society's disputes indicated that the single legal procedure already could not adapt the demand of solving the disput in the society. Since the second half of the 20th century, the Western countries led by the United States have started to seek the way outside the legal procedure to solve the dispute, and gradually established a set of multiplex dispute settlement michanism which contains many kinds of procedures.Today,in China, under the historical background which has great changes in the society, the increasing growth of the total quantity of the dispute and the shortage of the judicial resources have became the outstanding contradiction which could not be avoided in the process of the reform of legislation, and the construction of a multiplex dispute settlement mechanism has become a urgent matter in the reform of civil procedure.The design and the operation of a multiplex dispute settlement mechanism system need take the degree of the society's admission and the realistic demand of dispute settlement as the foundation. The mediation as our traditional dispute solution, from the procedure angle, has the characteristics of high efficient, swiftness and convenience, from the cultural angle, conforms to the social philosophy of pursuing the harmony traditionally, and is our inevitable choice in constructing the multiplex dispute settlement mechanism. The construction of the system of Docking litigation and conciliation is helpful to break the dualistic status of the mediation and the lawsuit, and provide the way of how to make use of the huge social network resource of the organization of people's mediation work, how to effective enhance the actual effect of people's mediation which solve the dispute "autonomously" and how to solve the flaws of the lawsuit mediation system.Since 2006, the system of docking litigation and conciliation has been extended gradually in our country and this practical exploration which has an experimental nature had obtained a good social feedback. But, in the exploration process of the system of docking litigation and conciliation also have a lot of theorist's dispute. Because the Supreme Court hasn't uniform definication, system and standard of the system of docking litigation and conciliation, various local courts have different understanding of it, practicing differently, lacking the thorough fundamental research, and then causing the people to have certain question to its validity. At present, the research of the system of docking litigation and conciliation usually concentrate on the social actual effect level, and it is often merely from the legal culture or the sociology of law angle ,and it focus on either the lawsuit mediation or the people mediates, and it lacks the theory understanding and the whole research of this system, in particular it lacks the research about the core questions such as denifinition of this system, whether has the validity as well as whether conforms to the basic value of the procedure .This article take this as a breakthrough point, through the definition about the concept and the connotation of to the lawsuit and the mediation docking machine-made concept and the connotation limits to prove theoretically this mechanism's validity from the judicial passivity, the independence and the judicial authority exercises three aspects. Simultaneously discussing respectively the procedure value of this system from the aspects of the efficiency of judicial, the effectiveness of solving dispute, the closing interpersonal relationship and the benefit safeguard, and providing a directive mentality about further consummating the construction of this system, and proposing a assumption of establishing the principle of distinguishing mediation from litigation as well as strengthening the effect of mediation before the sues. Finally, from the traditional culture of law and the sociological angle to performs the simple summary about the reality and the theory significance of the system of docking litigation and conciliation and makes the forecast to its prospect.