A Study On The Issues Related To Victim-Offender Mediation

Victim-offender mediation, which has been quested in judicial field in our country for the past few years, is a procedural system of dealing with criminal law cases. With theory of restorative justice rising all over the world, together with the raising of strategic object to building a harmonious society in our country, the practice of victim-offender mediation, featured as restoring relation, compensating damage, has transformed from previous slight criminal law case to field of serious criminal law case, including cases of death penalty. The voiced desire to giving victim-offender mediation a certain status in legislation is increasingly strong. In this thesis, some issues interrelated to victim-offender mediation are analyzed and studied, by which the author attempts to propose some constructive opinions on issues met in process of establishing system of victim-offender mediation in legislation. This thesis is divided into 4 parts:Part-1: Summary of the theories of victim-offender mediationVictim-offender mediation, also called victim-offender conciliation and victim-offender reconciliation, refers to that the victim and the offender discuss directly and negotiate to settle the criminal disputes after the offence occurred with help of mediator, who is usually the social volunteer out of China. It aims at restoring the social relation destroyed by the offender, compensating the harm suffered by the victim, restoring the harmonious relation between the offender and the victim, and making the offender mend his ways and returning to the society. The nature of victim-offender mediation is agreement, which reflects citizen's will of self-management and self-disposal.Victim-offender mediation is based on theory of restoring justice, theory of balance, and theory of narration in western countries, which is different from the victim-offender mediation featured as priceless harmony and no lawsuit in ancient China. In Chinese society under traditional etiquette and education, starting from the thought of no lawsuit, loathing lawsuit and degrading lawsuit directly leads in serious aftermath that people unknown, despise and ignore the law. Under circumstance directed by such thought, criminal mediation implies making diluted mud or private settlement. Therefore, the author regards that victim-offender mediation does not truly exist in Chinese history. Towards the criminal victim, victim-offender mediation may lead justice to realize effectively; to the offender, victim-offender mediation will make it possible that they can gain slight, easing or free punishment, even return to society with no taint. Victim-offender mediation also reflects the return of center of criminal justice, which breaks a new path for criminal justice to deal with disputes and conflicts multi-variantly.Part-2: Summary of practices on victim-offender mediation in ChinaCriminal mediation used in Shan-Gan-Ning border area in 1940s is the sprout and practice of victim-offender mediation in modern times of China. Influenced by theory of retributive punishment, this system is not established in criminal law and standard in China ultimately. Maple-Bridge experience, starting from the 1960s, provides practical possibility for system of victim-offender mediation to be established in law. Under the background of building harmonious society and implementing strategy of criminal justice combined with lenience and strictness, this system is positively quested and practiced by judicial authority in various locals, like Beijing, Nanjing, Jilin, Hunan etc. Without doubt, victim-offender mediation meets with some questioned voice and confused problems in practice: whether victim-offender mediation means redeeming guilty by spending money or not; whether the existence of victim-offender mediation breaks the law or constitution; what is the role of inspected mechanism; paying excessively close attention to economic compensation and problems existing in system of supervision and guarantee; shortage of afterward measures like rectify; etc. In this chapter, the author proposes some shallow viewpoints on how to treat these issues.Part-3: victim-offender mediation and the relative judicial systemSystem of postponement of prosecution, system of plea bargaining and victim-offender mediation is all results produced in the process of prosecution legalism transforming into prosecution convenience and amalgamation with each other. These three systems are all reflection of strengthening inducing notion of Criminal Law and function of reconstructing morality, and proof to people that multi-variant mode of crime settlement is making the modern criminal rule-by-law more effective. Studies on these three systems and relation among them have positive value of reference and significance of example in establishing systematic and complete mode of crime settlement.Victim-offender mediation and postponement of prosecution are both results of implementation of victim-oriented strategy of criminal protection in judicial practice and the reflection of multi-variant development of mode of crime settlement, also they both reflect the process and results of slight criminal law case settlement, but victim-offender focuses on process and postponement of prosecution emphasizes the result.The nature of plea bargaining is a certain reflection of victim-offender mediation, but the main part of plea bargaining is the prosecution and the offender. In addition, they have difference on applicable conditions, negotiating results and compensation to victim or not. Even so, they still have something in common: reflection of judicial multi-variance, promoting the efficiency of criminal lawsuit, and saving judicial resource; victim-offender mediation is unnecessary to achieve national right of crucifixion, and discussion in law case may partially achieve national right of crucifixion; being propitious for the offender to realize his behaviors, convict, change to be right etc.Part-4: The some issues on constructing the system of victim-offender mediationFirstly, issues on principles of application of victim-offender mediation contain following aspects: principle of conviction of the offender, principle of will-autonomy and principle of public interests. Secondly, issues on which kind of criminal law cases may apply to victim-offender mediation. The author regards that all criminal law cases with victim, including serious criminal offence, apply to victim-offender mediation. Thirdly, issues on the settlement of law case after victim-offender mediation is adopted contain 3 aspects: 1. no lawsuit, just applying to slight criminal law case; 2. postponement of prosecution, mainly focusing on situations that agreement of victim-offender mediation may have clauses of compensation in a staged manner and other manners of conciliation, and have possibility of causing difficulties for the offender in conviction, and going against public interests because of no lawsuit. 3. To sue. Towards serious criminal law case with clear facts and sufficient proof, plot of mediation is ought to be a reference of measurement of penalty; considering mediation may be expended to activities between the nation and the offender, therefore, law cases, in which main facts are clear and main proof is sufficient, may be brought into procedures of plea bargaining to be dealt with.In brief, it is reflected in practice that the system of applying victim-offender mediation in our country corresponds to overall requirement of building harmonious society, propitious for various contradictions to be settled essentially in the end. Therefore, victim-offender mediation is ought to be finally established in system of law.