The Law And Economic Analysis Of Court Mediation Svstem

The court mediation as special Chinese judicial system, both in theory and in practice are highly concerned. The court mediation system was once played the more important role than the trial in the founding of our state. With the perfection of legal system, the role of the court mediation system still irreplaceable but has been gradually fade advantage, and in practice, the intermediation of the court appeared in the process of the many problems, the typical judge forced mediation phenomenon for people place repeatedly dissatisfaction. Some scholars think that the court mediation system of extreme detrimental to the judicial authority, they proposal to give up it. But more legal scholars hold improved attitude. They tried to find the rationality of the existence of court mediation from the traditional culture, strived to perfect the court mediation system reform. Among them,"the judge division" point of view has been proved not desirable by practice, the separation of the new trial also limited to limit the judge’s behavior, the perspective is shown slightly narrow, the idea is similar to pure ideology research also lack of logic and persuasive. Some scholars have tried to use "cost-benefit" research method to do the court mediation system analysis, but their analysis is speculative to put some legal values quantitative comparison, both means and perspective are slightly narrow.The development of legal economics tells us, most of the legal system including the economic logic, the court mediation system is no exception. The court mediation system suitability of existence is that it can reduce the use of reasonable remedy social cost of the court, whether the social cost in lawsuit or the court social costs can all be in this system to get to save. Even so, the court mediation system is not perfect, the representation defects is compulsory mediation, beneath the majesty of the judicial is the essence problem. The researchers always research on the surface of the Forced mediation.they do not understand that mandatory is the point that different from other court mediation conciliation place, is also the advantage. Under the banner and improved complete boycott of the practice of the mandatory a total negation court mediation system. The wide use of mediation, especially the myth of the use of case can damage the judicial authority. Although in all the great majority in dispute is a compromise, but that a few of the judgment of case is also the most has the meaning of judicial case, if the court mediation is used excessively, will lead to those who have the meaning of judicial cases not get judgment, judicial authority and the development progress will be damaged. So, the court mediation and trial as a plural remedy of judicial two tools to do the best combination can realize reasonable remedy social welfare in when the target of profit maximization. The optimal judgment also contains behind the optimal mediation logic. The nature of the case (including complexity, the possibility of wrongly convicted of the judgment of size, judicial meaning, etc), litigation cost and size have influenced the court mediation and trial suitable choice.Logic perfect does not mean that in the practice of the perfect. Our country court mediation system in legislation has been quite perfect, but it "Be scolded" constantly in practice. Especially a line judge in the hidden even explicit mediation practices are forced to people of dissent. However, the judge as rational people,their behavior implies a economic logic, even if the behavior of compulsory mediation.Under the Background that the court mediation is as the basic principles in the law.and the administrative guidance requirements "improving Mediation ratio " and mediation of multiple background honor stimulation, the judge will have the incentive to increase Mediation ratio with no restrictions. So, no matter be "to persuade pressure adjustable","to lure pressure adjustable" or "to the press to","to drag the pressure" are thought to some extent can increase Mediation ratio and in mediation judge won the rationality of the existence of heart.The design of the system should be forecast the behavior of the executors.The optimal system should makes the execution do for himself at the same time also for the human. In the background of the judicial administrative guidance, judicial carried administrative solving social problem of sudden responsibility, and difficult to maintain their bottom line to the function of social justice, so first need to improve is judicial relative independence. Cancel the judge the pursuit of the high Mediation probability goal, to be replaced by encouraging the judge and the judge’s legal provisions mediation disclosure obligation, promote the parties reach a settlement of the independent. If both parties in doubt,"mediation+judge" mode can play a role, but the judge to supervision "corruption" behavior, prevent its turn to a party and lose the justice. With reverse incentive measures, give heavy punishment when the judges take the illegal behavior to motivate the judge to take justice behavior. The fuzzy words "When sentenced to is sentenced to" should be details, for those which have the meaning of judicial case is shall request the court for trial.