On Mediation System

For a long time the people' s court handles civil and economic disputes mainly through conciliation. On this basis an adjudication way with Chinese characteristics in which conciliation plays a leading role has gradually established. As China's economy further develops, its traditional court conciliation system becomes less and less suitable for the demands of reform in judicial style. This thesis expounds the significance and urgency of reform in China's traditional court conciliation system and puts forward its direction from four angles.The first part analyses the main features of China's traditional conciliation system and the background and social basis of its existence. It points out the self - sufficient natural economy is the soil for its emergence, the strong patriarchal clan system its theoretical basis and traditional conciliation system, based on small - scale peasant economy and feudal patriarchal clan system, and taken duty as its starting point, is not identical with the rule of law required by modern market economy which calls for rights, freedom, equality and justice. Therefore, we must recognize it correctly, discard the dross and select the essential. We should remold it reasonably and then make the past serve the present.The second part reviews the course of development of China's court conciliation system and analyses the existing problems and their causes. From the new - democratic revolution till now, court conciliation system is applicable. Although it has undergone revisions and improvements unceasingly, form the establishment of the principle of letting conciliation play a leading role to that of lawfully conducting conciliation on a volun-tary basis, there remain many problems in our actual practice. They are: the principle of voluntary participation in court conciliation cannot be carried out completely; the requirement that the content of the settlement agreement must be lawful docs not accord with the characteristics of conciliation; the legal demands of the facts being clear and of distinguishing between right and wrong does not conform to the inherent requirement of court conciliation and the unrestrictedness of its deadline and scope is not in agreement with the efficiency and justice of the law. With thorough analysis, we find the basic cause of those problems that showed themselves in the incorporated system that stubbornly welds conciliation into court trial is the unreasonable establishment of China's present system of civil justice, which is embodied in the four parts of contradiction: l.the contradiction between judge having partiality for conciliation and the same importance of conciliation and trial; 2. the contradiction between conducting conciliation on a voluntary basis and doing so compulsorily; 3. the contradiction between the flexibility of applying law and the seriousness of judging and ordering according to law; 4. the contradiction between making concession to avoid action and protecting the legal rights of the parties.The third part compares and analyses the concrete contents forms of expression and applicable principles of the court conciliation system both at home and abroad. By using other countries' g(X)d experiences and methods for reference which is concerned with the strengthening of the management of court's or judge's functions and powers, the simplification of the judicial procedure as well as the strengthening of judge' s function of conciliation, we develop our strong points while avoiding shortcomings, get rid of the stale and take in the fresh to find out a newway of court conciliation reform suited for the condition of our country, China.The fourth part comprehensively prohes and analyses the major idea concerned about the reform in China' s court conciliation system. It highlights the necessity of this reform and points out its direction and the basic principles to which we should adhere. In this part, a comparatively ideal plan is put forward, that is, the establishment of agreement mechanism of dispute resolution whic...