An Investigation Report On Procedures For Mediation In Lawsuit Of The People's Court

In recent years, The Supreme and Local People's Courts adhere to the in-depth studying and implementing the spirit of the Scientific Outlook of Development, firmly establish the socialist ideology of the rule of law which provide convenience to the people, adhere to the guiding ideology of"supremacy of the cause of the Communist Party of China, the people's interests and the Constitution and the laws", focus on"service for the general interests of the country and adjudication for the interest of the people", inherit and carry forward the fine traditions of mediation which consummate to China's realities, uphold the principle of"mediation first and along with the process of trial"well, take an active part in the"general mediation in mediation year"activities, strengthen the work of mediation in lawsuit of the people's court and mediate a lot of disputes and cases and resolve many contradictions in society. It brings the satisfactory political legal and social effects that ensure economic development in a better and faster manner and maintain social harmony and stability, also makes a significant contribution to the scientific development of the people's courts.The report introduces the existence value of the mediation in lawsuit first, combining with the justice statistics data analysis and discussing result which collected by visiting the local, expounds and proves amply how to creat the resolution mechanism for mediation in lawsuit procedures by ways of introducing the existence value of the mediation, comparably analysing the situation that the cases settled through mediation before and after the activities"general mediation in mediation year"which taken by the intermediate and local courts Baise Guangxi, the importance and possibility of creating the resolution mechanism for mediation in lawsuit procedures and how to perfect the procedures for mediation in lawsuit with the practical views.This report divides into four parts, besides the foreword.The first part is the existence value of the mediation in lawsuit. The report insists that the essence of the mediation in lawsuit is the dispute parties take a lawsuit activity which deal with their interests by their means under the court's advice and indemnification, when the conflict break out between the judicial authority and disposition, the judicial authority has to make way for the disposition because it is not the parties wishes. It is long from the mediation in lawsuit to be born, given highly praise by the different law districts. As the leading role in the civil lawsuit operating, the mediation in lawsuit fits for the establishment purpose of the civil lawsuit procedures which safeguard the parties benefit and procedure rights, it also reflects the principle of"transparency, fairness and impartiality", promots the national unity with social resources, maintains social stability, saves legal resources, improve legal efficiency and becomes one of the diversity modes which manage the society need by itself.The second part is analysing the situation that the cases settled by mediation in lawsuit about a certain city's intermediate and local courts. After introducing the local situation about a certain city and a certain county, the report compares and analyses the rate of the civil and commercial cases settled, the rate of the civil and commercial settled by mediation or were withdrawn, the rate criminal civil settled through mediation or were withdrawn and the rate settle out of enforcement which compiled by a certain city's intermediate and local courts from Jan 2008 to Oct 2010. Then the report sums up the successful experience of the lawsuit mediation which taken by a certain city's intermediate and local courts with questionnaires, interview records and real cases, the problems and defects which the mediation efficiency affected by lack of human resources, mediation restrictived by trial process management, high mediation rate and non- judgments courts chased, mediation restrictived because of judges or parties or agents and the lack of the base of cases or mediation.The third part is the feasibility analysis about how to creat the resolution mechanism for mediation in lawsuit procedures. The modern rule of law society focuses on providing safeguard benefit and procedure rights for parties at the same time, but the mediation in lawsuit lacks effective supervision as the civil trial procedures increasing sophisticated, the problems and defects summed up above are the results of lacking the procedures for mediation in lawsuit. The mediation in lawsuit system and judgment system have conflicts with voluntary and mandatory, cooperation and confrontation, intangibility and tangibility and the same social target, historical tradition, the function that promote and penetrate complementarily, which provide the importance and possibility for creating the resolution mechanism for mediation in lawsuit procedures.The fourth part is how to reproduce the resolution mechanism for mediation in lawsuit procedures. The report insists that in order to creat the mediation in lawsuit procedures system which combines with the civil lawsuit mode in current and procedure safeguard ideology, has the features that dominated by the parties agreement, reflect convenience, flexibility and Chinese characteristics, the falling measures must be taken: first, choose the mechanism for mediation to suit local conditions and creat the phasic and moderate mode for mediation mode; second, strengthen the voluntary principle, insist the legal principle, limit the principle that ascertain the facts and distinguish right from wrong; third, make definite the names, the parts which take part in it, the periods and creat the reasonable inspired mechanism; fourth, standardize the basic mediation in lawsuit procedures, insist to make the mediation to the public, pay great attention to make the legal documents; last, strengthen the performance effectiveness of the mediation agreement, limited the parties go back on their words and bring a retrial strictly. These measures can bring a perfect safeguard for parties and judiciaries, effect a reconciliation for a dispute more fully and serve the Chinese legal modernization more effectly.