Mediation In Coutryside With Emotion, Reason, Law And Judicial Recognition

The object of this study is the mediation system in China's rural society, revealing the problem of social customs and traditional culture in village mediation, which shows the significance of introducing normalized good practice into justice. Therefore, emphasis is put on the analysis of the process of mediation from the perspective of specific cases in practice. That is, starting with the personal tort case in a village of Y County in Chongqing, analysis is made on the rural customs in the process of mediation as well as the inherent traditional culture therein, and analysis is also made on the impact of rural customs on the social order in villages. While the state laws also run on the village, but can not meet the current needs of society. Therefore, this would affect the overall situation of the social order. Based on the discovery of this issue, the author examines the internal factors that lead to the occurrence of this issue, namely, the performance of the conflict of "the interactivity of rights " in law and customary norms. Finally, this paper puts forward two localized strategies to solve this issue: in the space of separate rights, using ethical practices to fill gaps in law; in the space of cross right, law should be adopted reasonably towards severe punishment on morality. Discovering the fact of interactivity of rights, and points out the scope and manner of the introduction of normalization of good practice into justice.This text is divided into five parts:The first part is about the cases and problems. First is the account of selected case and its background, and then questions which are raised towards the case, which paves the way for the following analysis. Generally speaking, the personal tort case comes from the practice of social investigation by Professor Yu Zhong, and the text materials are from the excerpts of his book, "Rural China's Judicial Picture." In studying the case, I discover that a whole family being involved in mediating the dispute between the pair of sisters-in-law, considering the relationship between housework and rural social order, and put forward logical cycling factors which make impact on China's social order; Secondly, as for the behavior of cooperation with each other in the process of dealing with cases, I discover the close relationship between the traditional Chinese cultural factors and local social customs, and then propose the cycling "Circle" of interpersonal relationships in the pattern of difference and the relationship between its influential factors and the social order. The second part is the analysis of the rural social customs reflected in the mediation process. First, starting with the social customs of the village under emotion, reason and law, makes a specific analysis on the mediation process of the cases. It is divided into five small parts, namely, first, multi-stakeholder involvement - the practice of evaluation by everyone; second, based on the home of the parents– the practice of not to wash dirty linen in public; third, logical way of language, - common sense practices; fourth, the characteristics of results- the practice of psychological balance; fifth, the collateral effects of the results– the practice that relatives do not harbor bitter resentment. The practice of evaluation by everyone is closely related with the intensive kinship in rural society and local customs; the practice of not to wash dirty linen in public reflects the real situation of interpersonal relationships; the practice of reasonable interpretation is the mediation techniques that convince people with reason and move people with emotion ; the practice of psychological balance conveys traditional Chinese customs of non- litigation and pragmatism; the practice that relatives do not harbor bitter resentment describes China's complex and subtle network of interpersonal relationships.The third part is the analysis of the traditional culture reflected in the mediation process. This is decomposition of the process of the case from a logical point of view, namely, the parties concerned opt for the way of mediation to resolve issues, both parties accept mediation programs and the identities of mediators—analysis of the effect of traditional culture from the three aspects. That the parties concerned opt for the way of mediation to resolve issues reflects the harmonious culture, face culture and morality culture; that both parties accept mediation programs reflects the culture of moderation, practical culture and comity culture; the identities of mediators correspond to: mayor - the culture of local authority, village-based cadres– culture of the third area, the parents of the parties concerned - filial piety culture, the two brothers - family-based culture.The forth part is based on the overall reflection of the above analysis. First of all, analyze the way that the traditional culture plays a role in rural society and the function thereof. Traditional cultures create customs of rural society, while the rural social customs play an important role in the maintenance of social order in rural areas, as opposed to laws, traditional culture, through people's direct or indirect perceptions, also plays a jurisprudence role in regulating people's everyday behavior. My logical course is mutual influence between traditional culture, customs of rural areas and rural social order. Selecting a far-reaching harmonious culture, non-litigation customs, local authority culture and customs of village mediation as an analytical perspective, reveals the internal relationship between the non-litigation customs and rural social order, and the internal order between the mediation customs and rural people. Second, based on comprehensive analysis of the problems above, the author puts forward recommendations of introduction of normalized Good custom into justice.The fifth part is about the meaning of Application in village mediation .As for the research on this issue, I first consider the reality based on the conflict between statute laws and rural customs, and then examine the basis of justice for Good custom and its scope. Then, based on "human rights", I wholly delve into the practical and theoretical significance of " interactivity of rights " in our country. This article goes on to examine the scope of the introduction of local good practices into the normalized judicial activities. Because the space reflects the failure of existing laws, it can not be strictly handled in accordance with the articles of law, and can only be turned into " jurisprudence " in action because the law is the legislative outcome based on" jurisprudence ". The theoretical basis for " jurisprudence " is " sociality of law", and practical basis is " respecting the sovereignty and safeguarding human rights" of the constitution, and the party's concept of governance "people-oriented".At the end of this article are four proposals on the introduction of good custom into normalized judicial activities, namely, formulating specific provisions by legislative interpretation and judicial interpretation, formulating guidance provisions through judicial policies, and making logical selections through legal reasoning.