Study On The Court Mediation System In China

The court mediation as an important system of the civil litigation in China is aunique and important way to settle disputes. Mediation that is the way to resolve thecivil disputes has a long history. It’s the harmony and natural order which the publicpursue, and the choice of the Confucian Niv Thought. The court mediation systemthat is born of mediation, originate from the “Ma Xiwu’s Judge Way” whichproduced in the border region’s judicial practice of the New-democratic Revolution.It has experienced the development track of negation of negation, then it can adapt tothe transition period of the social environment which shows interest diversified andcomplicated, which has the characteristics of convenience and low energyconsumption. In recent years,“moving big judicial” leads to the tendency ofmediation, the court mediation is heated debated in the legal science. The paper usesthe empirical analysis of the research method, investigates the social, cultural andpolitical of the court mediation, and then comparatively analyses the advantages anddisadvantages of the foreign related systems. Afterwards, the paper dissects the courtmediation from the view of the legislation level and the judicial practice, and then,puts the improving suggestions on our court mediation.“Any established and healthily functional system needs a strong sustentation ofthe essential theory.” The study of court mediation system should proceed with theessential theory, which reflects the contemporary characteristics. Thesecharacteristics include the political, economic, culture and morality. The paperexpounds the basic theory of court mediation system briefly, and then it traces backorigins and searches for the development track of court mediation system inhistorical analysis method. On this foundation, the paper analyzes the rationality andshortcomings of the court mediation to reform and innovation. The court mediation is internationally praised as. In western countries, theyreform the way to settle disputes with the “Oriental Experience” for reference, incivil and commercial areas, even in criminal field. Although we created the “OrientalExperience”, it is undeniable that there has been a lot of experience which is worthstudying for us in the western countries. Based on the investigation into the courtmediation system of the USA, Germany, Japan and Taiwan, the paper compares theiradvantages and disadvantages, then find the legislation and practice experience to besuitable for reference.From the legislative and judicial practice two aspects to analyze and discuss thepresent situation of the court mediation, the paper reconsiders the defects of the courtmediation, after that, thinks the perfect way of the court mediation, which is suitablefor the Chinese national conditions in socialism government by law idea as thefoundation. There are five shortages in the legislation that the paper discusses: thefirst is that the “facts are clear, distinguish right and wrong” is inconsistent with theflexibility principle of the court mediation; the second is that the voluntary of thecourt mediation lacks institutional guarantee; the third is confidentiality of the courtmediation is not perfected; the fourth is that there is not time limit and limits of thecourt mediation; the last is the law does not regulate the execution of explanationwhich belongs to the judge by right. In the judicial practice, there are two basictopics. The one is that the evaluation criterion for judges sets unreasonably. Anotheris the choice of the adjuster is narrow.The academia puts forward a lot of reform plans to perfect the court mediation,such as changing “the unity of trial” for “adjusting the separation”. The author thinksthat the institutional guarantee of the voluntary principle should be set up within theexisting system, in order to adapt to the present judicial situation and avoid thephenomenon “forced mediation”. At the same time, its opinion is establishing theconfidentiality principle, limiting the number of the court mediation and deadline,and reforming the litigation fee system and so on. In the judicial practice, it says thatestablishing a scientific and reasonable evaluation criterion for the judges and expanding the range of selection of the adjuster are the ways to improve thedemocracy and acceptability of the mediatory results, to ensure the court mediationsystem operating healthily.