A Study On Conciliation System In Civil Lawsuits

As a civil dispute remedy system, the conciliation system in civil lawsuits has the features of rationality and superiority, and is recognized by legislations in different countries all around the world; China recognizes this conciliation system too, however, owing to the fuzziness in stipulations of key issues like the nature, condition, and legal validity of conciliation in lawsuits, this system lacks feasibility, and its real functions hasn't been brought into full play; so it is necessary to establish a suitable civil conciliation system in China. As Chinese people today strive hard to build a harmonious society, civil conciliation system can better meet their needs, and what's more, the traditional ideology of peace is most precious is widely recognized and accepted by social members, which should be taken into consideration when evaluating whether a legal system can root and grow in the soil of China; with the development of society, the number of China's civil cases becomes increasingly more, and burden laid upon the courts also becomes increasingly heavy; if every dispute can only be solved by courts'judgment, tremendous pressure would be exerted upon society and disputes could never be fundamentally conciliated, and moreover, incidental cost after the judgment would rise. When writing this paper, the author hopes that it could make contribution to China's legislative construction; owing to certain limits, this paper can not be exempt from shortages, and advice is welcomed.This paper clarifies the denotation and connotation of lawsuit conciliation by firstly analyzing the nature of it, and meanwhile figures out the significance of lawsuit conciliation, which is the premise and foundation of the establishment of lawsuit conciliation system, and also is the key orientation of this legislation. Another dispute-settling mechanism in China's current legal system, also called the conciliation system of oriental experience, occupies an important position in China's dispute-settling mechanism and plays importantly in the long-term legal practice; however, its theoretical mode couldn't defy court's position as its standard, and as a result, lots of problems can't be fixed in the real case practice, which is also an intrinsic flaw that can't be deleted by self completion but can be compensated by lawsuit conciliation system. Then this paper draws references from other countries'relevant legislations, analyzes the different legislative mode in each country by comparison, and proceeds from the current situation in China, and then proposes which mode China should adopt from a view that China should draw the strong points of others to offset its own weakness; last, this paper does some analysis and reflection work concerning China's present legislation and current situation, and then puts forward the proposal of constructing lawsuits conciliation system in China.The framework of this paper is like the followings: Chapter 1 is an review on the conciliation system in civil lawsuits, and this chapter includes: First, the definition and nature of conciliation system in civil lawsuits; analysis on its nature lays foundation for further research, or else the construction of it loses ground; how we define lawsuit conciliation depends on how we see its nature, and this paper spends lots of words on the illustration of lawsuit conciliation's nature, because analyses conducted and choices made would influence China's choice of legislative orientation; Second, the superiority of lawsuit conciliation system, this part is mainly about the scientificity and rationality of lawsuit conciliation system, why so many countries recognize this system, and why China, too, should establish a system alike; the superiority of lawsuit conciliation system lies in three aspects: the first aspect is that it can quickly fix disputes; in a lawsuit presided by the court, through a series of procedures like testimony, cross-examination and court debate, parties involved can soberly treat their rights, shoulder their responsibilities, evaluate their own advantages and disadvantages with comparative objectivity, and create psychological conditions to seek a fair resolution; the second aspect is that it can reach an unification of social effect and legal effect, and it can not only properly fix disputes but also erase the psychological confrontation from lawsuit subject; the third aspect is that it can save lawsuit cost; considering the cost of each lawsuit in the perspective of an entire country, those costs are huge and expensive, however, lawsuit conciliation can effectively shorten litigation cycle, save judging energy, and save time wasted by implementing procedures like compulsory execution etc.; all those efforts are more cost-saving than strictly following judging procedures; Third, the comparison between lawsuit conciliation and lawsuit mediation; because of the research on the lawsuit conciliation system, a comparison with and an analysis on the lawsuit mediation system are inevitable in China. Chapter 2 is a comparison study on the lawsuit conciliation system; this chapter includes: First, the lawsuit conciliation systems in some countries; this chapter analyzes legislations of lawsuit conciliation system in some representative countries from Anglo-American Legal System and Continental Legal System, and inspects legislative mode of lawsuit conciliation system by comparison; Second, an evaluation and analysis on foreign lawsuit conciliation systems; since comparison of each county's legislation has been done previously, this part objectively evaluates the legislative mode of lawsuit conciliation system in each country through analysis and contemplation, and clarifies their advantages and disadvantages; the author hopes to offer some help to China's construction of lawsuit conciliation system. Chapter 3 is some basic assumptions about the construction work of lawsuit conciliation system in China; this chapter includes: First, the current situation of China's lawsuit conciliation; through the observation of China's present laws and regulations, this author of this paper finds that although China recognizes lawsuit conciliation, it hasn't established an independent system of lawsuit conciliation, and lots need to be fixed; Second, the necessity of constructing the lawsuit conciliation system in China, and proceeding from China's current condition, specific analysis will be conducted in this part, i.e. why the establishment of a lawsuit conciliation system is a trend in China, and it is inevitable that lawsuit conciliation system would gradually gain attention in the process of building a harmonious society. Third, some assumptions concerning constructing lawsuit conciliation system in China; this part puts forward several assumptions concerning how to establish a scientific and reasonable lawsuit conciliation system in China, and this part includes three basic principles for the establishment of lawsuit conciliation system: the first principle is that China should further coordinate the relationship between the right of suit and judicial power, and bestow lawsuit-ending power on conciliation agreements; the second is that lawsuit conciliation should obey some principles which are free will, validity, and procedures and entities as equally important; the principle of free will is the soul of lawsuit conciliation, and also the most prominent feature in this system, and if this principle can't be entirely obeyed the existence of this system would be meaningless; the third is that the litigation status of parties involved should be equal. Then this paper discusses what form lawsuit conciliation should take. The form of lawsuit conciliation is an important issue that China should be faced with while constructing lawsuit conciliation system; concerning other countries'legislation and proceeding from China's current situation, we should establish a complete and rigid legal form to regulate this conciliation; in the end, this part discusses lawsuit conciliation's legal effect which is also a core issue; how to determine the legal effect of lawsuit conciliation is key as far as its position and function in the entire legal system are concerned; the establishment of lawsuit conciliation should have lawsuit ending effect, i.e. an legal effect equal to final and binding judgment which includes binding force, deterministic force and execution force.