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People's Mediation Agreement Judicial Confirmation System Research

Posted on:2013-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:H ShiFull Text:PDF
GTID:2246330395450102Subject:Procedural Law
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As an achivement of China’s effort to faciliate the innovation of social management, the System of Judicial Confirmation of People’s Mediation Agreement has been recongnized by the Mediation Law of the People’s Republic of China. The Judicial interpretation promulgated by the Supreme People’s Court also stipulate the detailed procedure thereupon. At the time when the Civil procedural Law to be modified, there exisists hotly debate concerning the nature, the effectiveness, the detaled procedure of the Process of Judicial Confirmation. The local court and the Administrative Department of Justice take various measures to implement the System of Judicial Confirmation of People’s Mediation with the mixture of their respective functions and responsibilites. The People’s Mediation Commission is also criticized due to its low-level of institutionalization and the incompetence of its member. This paper confines the subject of the Judicial Confirmation System within the following conditions:(1) the mediation agreement, reached through the People’s Mediation Commission, which is totally irrelevant to the Court;(2) the mediation agreement, reached when a ligation has already been brought up but has not been accepted yet, which no court was involved. Based upon the acknowledgement of the value of the Judicial Confirmation System and subjected to the purpose of the system this paper, after a comprehensively research of the debate thereof, argues that the nature of the process of Judicial Confirmation shall be defined as a non-litigation process and.As to the Res Judicata of the decision of the judicial confirmation, we should admit it in a certain degree and insist the positive perspect of the Res Judicata. Regarding problems of judicial confirmation work, guidance shall be conducted from macro perspective and specific process shall be improved. This thesis is of five chapters.Chapter1, definition and value of Judicial Confirmation System of People’s Mediation Agreement. This chapter defined the applicable object of the judicial confirmation system as a mediation agreement with no relation to court. The nature of the judicial confirmation is to grant the effectiveness of forcible execution to the valid civil mediation agreement based upon the consensus of parties and due examination procedure Chapter2, nature and effectiveness of Judicial Confirmation System of People’s Mediation Agreement. This chapter makes comments upon the debate re the nature of Judicial Confirmation Procedure, holds judicial confirmation shall be specified into non-litigation process from the purpose of such system. Additionally, the legally binding force of People’s Mediation Agreement shall be comprehended integrally with the context of law, and an compromised viewpoint of its Res Judicata shall be held, i.e. positive effect of Res Judicata shall not be approved whilist its negative effect shall be affirmed.Chapter3, research upon foreign and Taiwanese relevant system. From the perspective of comparative law, similar foreign system was researched. This chapter respectively introduces Mediation Annexed to Court in U.S., Civil Mediation in Japan, pre-action mandatory mediation prior in Germany and mediation in Taiwan region, meanwhile, a comparion with Judicial Confirmation System of People’s Mediation Agreement was conducted and similarities and differences was indicated. The Taiwan mediation system was deemed as sample as worth being introduced.Chapter4and chapter5jointly discuss the the existing problems of Judicial Confirmation System. Further discussions focus upon such the potential negative influence, detailed procedural rules and the existing problems within the confirmation works as of the judicial confirmation system. When putting forward the judicial confirmation system, there is an orientation of emphasis of dispute settlement and ignorance of procedure. Additionally, the substantive examination for Mediation Agreement is of failure to conform to the purpose, and the relif strength is inadequate. In practice, problems such as lack of standardization for confirmation process, inadequacy of institutionalization for mediation organ and confusion of responsibilities for authorities are commonly existed.Chapter5, approaches for perfection of Judicial Confirmation System of People’s Mediation Agreement. This chapter provides the perfection of Judicial Confirmation System from both macro policy and micro system. Regarding macro aspect, the dispute settlement and due procedure shall be of equal importance when pushing forward Judicial Confirmation System, and the responsibility of conciliation service, judicial administrative authorities and basic-level Legal Service Office shall be divided definitely with coordination based upon independence. Regarding micro aspect, firstly, the People’s Mediation Agreement applied for confirmation shall be examination formally, and the confirmation documents shall be in the form of written verdict. In case of existence of fault therein following the confirmation decision being made, the parties shall be allowed to apply for revocation. Secondly, the scientific confirmation process and accessment system shall be established. The distribution of cases shall be subject to the Case Filing Tribunal, and a specialized statistics route shall be created for such confirmation cases. Finally, for the purpose of improvement of the institutionalization establishment of People’s Mediation Orgnization, the judicial administrative authorities shall strengthen propaganda training, restrict access of mediation personnel, and the local government shall concentrate on coordination and fund guarantee.
Keywords/Search Tags:People’s Mediaton Agreement, Non-litigation Procedure, JudicialConfirmation
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