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Study On The Pre-mediation In Litigation

Posted on:2012-11-22Degree:MasterType:Thesis
Country:ChinaCandidate:F R WangFull Text:PDF
GTID:2216330338459621Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
settling certain types of disputes. Therefore, Marriage Law of the People's Republic of China and Provisions on Application of Trialing Civil Cases by Summary Procedure of the Supreme People's Court confirm that six types of disputes must be mediated after its registered,"pre-mediation in litigation"is therefore established in our civil litigation. This paper is about"pre-mediation in litigation". Its conception, foundation and improvement of the system is to be discussed.In structure, besides forward and epilogue, five parts are included:PartⅠSummarize of"pre-mediation in litigation". Firstly, it compares the concepts of"pre-mediation"with"mandatory mediation"and"mediation procedure prefixed". It states why the concept"pre-mediation in litigation"is used, and the concept"mandatory mediation"or"mediation procedure prefixed"is not used. This concept explains that in which stage pre-mediation is. It is ruled by legislation, so the parties will not consider that they are forced to accept mediation settlement. People can understand its meaning intuitively. Secondly, it demonstrates the meanings of the concept, which has three characters. It is a mediation of court; it is necessary in litigation. It only aims at some types of disputes in ordinary procedure of first instance. At last, it compares"pre-mediation in litigation"with other mediation in and out of litigation.PartⅡFoundations of"pre-mediation in litigation". It demonstrates the foundations of"pre-mediation in litigation"from three different aspects. Firstly, the theoretical foundation, the typed of procedure theory, namely set up different procedures for different cases. Secondly, the reality foundation, namely the relationship between the parties, prediction of the future of the relationship, the social regulation which dominates the relationship in the dispute, perfect degree the legal provisions is, all of which decided the type of the disputes. Thirdly, the procedural foundation,it discusses the procedural foundation from four aspects, choices of procedure of the parties, right of action, the value, the function of court.PartⅢSimilar systems of other countries and regions. It discuss the sameness and difference between"pre-mediation"and"command mediation","mandatory mediation", "mediation procedure prefixed"of other countries and regions. Other countries and regions are different from us on stage, object and host. These provide useful reference for perfecting"pre-mediation in litigation"of our country.PartⅣPresent situation of"pre-mediation in litigation"of our country. Firstly, it analyses the legislative present situation of"pre-mediation in litigation"of our country. The Legislation is simple, scattered, and its effectiveness is low. Rules of types of dispute are unreasonable. The time arrangement, institution and basic principle are unreasonable too. Secondly, it analyses judicial practice."Pre-mediation in litigation"is as same as mediation of court in judicial practice. Under the booming ADR movement background, many courts try to reform the mediation. However, they are short of legal ground, so they implement unsmooth. The"pre-mediation in litigation"has legal ground, but it isn't played a role.Part V Conception on perfecting"pre-mediation in litigation"of our country. Firstly, in terms of fundamental principles, pre-mediation in litigation adhere to these principles: principles of mediation privately, principles of limited procedure, principles of that the parties participate pre-mediation personally. Secondly, in terms of the applicability, pre-mediation in litigation applies in marriage and family disputes, homestead disputes and neighboring relation disputes, lending disputes among relatives, partnership disputes, new dispute which has no explicit provisions, and other disputes which the judges think should be pre-mediated. The pre-mediation in litigation only apply to ordinary procedure of first instance. Thirdly, in terms of institution, specialized standing mediation organization is responsible for the operation of mediation procedure. Fourthly, in terms of procedure, the procedure starts without the parties'agreement. The period is 15 days. Once mediation agreement is reached, or mediation agreement can not be reached to the deadline, or the fact shows mediation agreement can not be reached, the procedure is end up. The fifth, in terms of relieving and safeguarding defects of pre-mediation. The mediation settlement applies to principle of limited appeal.
Keywords/Search Tags:Pre-mediation, Mandatory mediation, Mediation procedure prefixed, Typed of procedure
PDF Full Text Request
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