The Court Mediation System

For a long time, the court in PRC has mainly adopted the mediation to deal with the civil and economic issues, so the Chinese-characteristic mediation trial pattern has gradually formed, which is even known as "the oriental experience" by foreigners. It can not be denied that, under the particular historical circumstances, the judicial mediation in PRC has ever played great role for solving the civil issues and maintaining the social stability, because the judicial mediation was suited to the then social living conditions such as the planned economy, the simplified laws and the stable residence, etc. From the late 70's of last century, however, because of the reformation of the political and economic systems in China, and along with the gradually thorough reformation, especially after the 14th conference of the CCP(Chinese Communist Party), the whole society of China is speeding up its change into marketing and legal system, and the social conditions, which made the judicial mediation being existed for a very long time, have already changed. So the judiacial mediation system is more and more exposing its defects.For solving the problem, the legal theoretical and judicial circles designed many reformation schemes, which can de divided into two types: 1. to reform it within the present system, i.e. to lay down the perfect and concrete legal rules for overcoming its defects; 2. the other is totally on the contrary, which maintains the separation of the judicial mediation form the judicial procedure.At present, the theoretical circles basically reached a same idea in the judicial mediation reformation. Nevertheless, considering that the relevant regulations still exists in our country's Civil Procedural Law, and that the mandatory judicial mediation still repeatedly occur in many local courts, the author of the paper maintains that it still has significance to write the paper. In addition, to reform the judicial reformation does not only mean the necessity of rooting out the judicial mediation's defects, but the necessity of further pushing the reformation of our country's civil judicial pattern forward and bringing about the change of the mediation-pattern trial into the judgment-pattern trial. Therefore, the significance to reform it does not mean the perfection of itself any more, but means the whole changeof our country's civil judicial structure.Based on the above consideration, the author of this paper tool the study of judicial mediation as his master paper, and hopes the paper can contribute to the reformation of our country's judicial mediation.This paper is divided into three main sections: the forewords, the main body and the ending words. The main body has four parts. The first part mainly studied the differences between the judicial mediation and the relevant institutions. These relevant institutions are the citizen mediation, the mediation in arbitrary, the mediation in administration and the settlement in trial. The second part mainly studied the history of the judicial mediation. The main purpose of the part is to get such a conclusion: the judicial mediation and other mediations were developed and existing in particular social conditions, and it is not necessary to maintain the institution if such social conditions have changed. The third part mainly studied the relevant institutions in other countries and China Taiwan, and made comparisons with our judicial mediation. The main purpose of this part is to make use of them for reference to the reformation of our judicial mediation. The fourth parties the most important part in the paper. In this part the author studied the defects of our country's judicial mediation, the necessity for its reformation, the legal theoretical circle's opinions on its reformation and the writer's opinion on it. In the part, the author points out that, the present judicial mediation should be abolished, and the ADR and the settlement in trial should take the place of it, i.e. absolutely depriving the judgers of mediating right, and the judger's job is to try in...