On Diversified Mechanism For Dispute Settlement

At present, China is in the period of social transformation, and social contradiction is extremely sharp, litigation, as the final and the most important method for realizing civic rights, is receiving more and more attention along with the increase of people's awareness to protect rights and consciousness of legality. However, litigation is not the only method to solve dispute, the requirement of social development can be preferably satisfied only through coordinating multi-mechanisms for dispute settlement. Therefore, effective and reasonable system arrangement for various dispute settlement methods is the most important thing for solving dispute, that is, to construct diversified mechanism for dispute settlement.The paper is divided into three chapters, in which the current situation of diversified mechanism for dispute settlement in China, the legal principle foundation and the practical needs of diversified mechanism for dispute settlement as well as the construction of diversified mechanism for dispute settlement in China are discussed and analyzed.In Chapter one, diversified mechanism for dispute settlement is briefly discussed, and then the current development situation of diversified mechanism for dispute settlement in China is analyzed. Mechanism for dispute settlement is a system which is made up of regulations, systems, procedures and institutions (organizations) as well as activities, it is established by a society for solving disputes. Diversified mechanism for dispute settlement is a kind of mechanism which solves various social conflicts and disputes emerged in current period of social transformation in China by different kinds of methods. The procedures and methods for solving disputes are diversified, which mainly include the diversified solving method which is made up of the three basic methods of negotiation, mediation and adjudication as well as the combination of the three. Ever since a long time ago, all kinds of methods for solving disputes have been formed in China, which include people's mediation, settlement by agreement, administrative handling, arbitration and litigation etc., those methods realistically play roles on solving disputes, however, a diversified mechanism for dispute settlement which has complementary functions, good interaction, combined procedures and each other's support has not been formed among various methods. After entering into 21st century, diversified mechanism for dispute settlement in China starts to take initial development. However, we also should see that diversified mechanism for dispute settlement still has many deficiencies and problems in many aspects in practice, which is mainly shown as follows: the legislation for diversified mechanism for dispute settlement is not perfect and its legal ground is not sufficient; in the existing mechanism for dispute settlement, judicial proceeding is not well connected with non-judicial dispute settlement and the leading role of court is not brought into play; the structure of diversified mechanism for dispute settlement is unreasonable, and its value orientation is single; the procedure interests and value of non-judicial dispute settlement can't be recognized enough.In Chapter two, the legal principle foundation and the practical needs of diversified mechanism for dispute settlement in China are discussed. Diversified mechanism for dispute settlement has its specific legal principle foundation, and the ontology foundation of diversified mechanism for dispute settlement is the organic nature of social existence itself and the complexity of social phenomenon; the realistic basis of diversified mechanism for dispute settlement is the diversified nature of actual social contradiction in China; the methodology basis of diversified mechanism for dispute settlement is the method of concrete analysis on concrete problems; the historical foundation of diversified mechanism for dispute settlement is the diversified methods to solve social conflicts and disputes in Chinese history. However, which kind of mechanism for dispute settlement on earth should be constructed by a society is not only a theoretical problem, what's more, it is a practical problem. After 1990s, the problems in mechanism for dispute settlement highlights day by day. On one hand, the contrast between the decline of non-judicial dispute settlement mechanism which primarily uses civil mediation and the double-digit growth of litigation is formed; on the other hand, judicial resources are insufficient to process the ever growing disputes, incisive contradiction is formed for the serious deficiency between the requirements of dispute settlement and the supplies of justice; social stability and development are seriously influenced by the high frequency, drastic confrontation and cohesion of social contradiction, therefore, the construction of diversified mechanism for dispute settlement becomes the practical needs of policy change and sustainable development of society in China.In Chapter three, the construction of diversified mechanism for dispute settlement in China is discussed. The construction of diversified mechanism for dispute settlement is a difficult course which requires continuous quest and practice. Diversified mechanism for dispute settlement is a system which is intervened in length and breadth, and it includes a series of problems, such as state formal institution and civil informal institution, substantive rules and program specification as well as the specification for selecting controller, etc. Correct idea of direction is the starting point of system design as well as the premise and foundation of system construction. In order to construct diversified mechanism for dispute settlement, firstly, litigation-dominated idea should be established and limited judicial idea should be advocated, although litigation and the method of non-judicial dispute settlement are depended and supported with each other, the method of non-judicial dispute settlement must take powerful judicial authority as supporter. Secondly, limited judicial idea should be established, judicial authority should recognize the limitation of justice in correct way, its function in dispute settlement should be restricted to some extent, and it can't try to bring extensive and complicated social disputes into its own field of regulation and control, at the same time, society and masses also should recognize the limitation of justice in correct way, form reasonable role expectation for justice and abandon the notion of all-function of justice. Thirdly, benefit idea should be established, benefit should become one of the most important values pursued by it in the design of the procedure of dispute settlement, the allocation of judicial resources should be in line with benefit principle, and benefit principle must be reflected in the construction of mechanism for dispute settlement. In order to form a reasonable mechanism for dispute settlement, efficiently solve social disputes and maintain the stability of social order, various specific methods for solving disputes must be further perfected so as to give full play to its own advantages and make it form organic operational entirety, thus the perfect state of dispute settlement will be finally achieved. The specific construction of diversified mechanism for dispute settlement should include the following aspects: Firstly, the method of litigation dispute settlement should be perfected. The perfection of judicial system is the important content for constructing diversified mechanism for dispute settlement, therefore, reasonable allocation for judicial power should be further perfected and realized, the mediation system of court should be perfected, and judicial function should be optimized. Secondly, the method of non-judicial dispute settlement should be perfected. The system of people's mediation should be strengthened and perfected, the training for legal knowledge and the knowledge of mediation should be given to the members of people's mediation organization at regular intervals by court and administrative organization of justice, new people's mediation organization should be developed and trained, lawyers'participation for people's mediation should be strengthened; arbitration system should be strengthened and perfected; administrative system of mediation should be strengthened and perfected etc. Thirdly, the coordination and connection among diversified methods for dispute settlement should be strengthened. A significant reason that diversified mechanism for dispute settlement has not been constructed in China is that good integration and connection are not realized among multi-methods for dispute settlement. Therefore, when the methods of litigation and non-judicial dispute settlement are perfected so as to effectively display their advantages, the court's functions of organization and coordination should be brought into play, and the connection practice and the experiences of mechanism of people's mediation and mediation of court should be actively used as a source of reference so as to probe the effective connection way between the method of non-judicial dispute settlement and the method of litigation dispute settlement, at last, the institutionalization and standardization of relationship between the both sides are realized so as to realize function's good interaction and complementary advantages among diversified methods for dispute settlement and form reasonable and effective diversified mechanism for dispute settlement.In a word, in the current period of social transformation, when we continuously perfect judicial system, the best feature on the aspect of the processing mode for social contradiction in our national culture should be retained, the function of mechanism for non-judicial dispute settlement should be fully brought into play, diversified mechanism for dispute settlement should be constructed and perfected so as to make complete the drawbacks produced by judicial limitation, promote the effective settlement for disputes in contemporary society and the harmonious development of society.