Research On Judicial Confirmation Procedures Of Mediation Agreement

In recent years, with the rapid development of the market economy, the demands of interests have become more and more diversely, the number of disputes is increasing, a large number of cases poured to court, the limited judicial resources can not meet the needs of social disputes, people began to explore alternative resolution to relieve pressure on the court proceedings. Mediation is the most important way of diversified dispute settlement. However, due to the lack of authority and mandatory effectiveness of mediation agreement, and relative weakness of constraint, many litigants had reached an agreement and then they went back on it, making the dispute back to the original stat, they still need to solve dispute by litigating to the court, on one hand it have caused extremely waste of judicial resources, on the other hand also the loss of time and energy of the litigants. The appearance of judicial confirmation procedures of mediation agreement made up the weakness. The concept of "Judicial confirmation" firstly appeared in the Opinions on People’s Mediation Agreement Pretrial Judicial Acknowledgment Mechanism (Trial), which was enacted by Intermediate People’s Court of the Dingxi city in 2007. In recent years, China has successively issued a series of laws and regulations and judicial interpretation to stipulate mediation agreement judicial confirmation procedures, which including Opinions of Supreme Peolple’s Court on Establishing and Strengthening Settlement Mechanism of Conflicts and Disputes between Litigation and Non-Litigation in 2009 (hereinafter referred to as the 2009 Opinions), People’s Mediation Law of People’s Republic of China in 2010 (hereinafter referred to as the People’s Mediation Law), Some Provisions of the Supreme People’s Court on People’s Mediation Agreement Judicial Confirmed Procedures in 2011 (hereinafter referred to as Judicial Confirmation Procedures Provisions), the Decision on Revising<Civil Procedure Law of the People’s Republic of China> the second revise in 2012 (hereinafter referred to as the New Civil Procedure Law) and the Application Explanation of Supreme People’s Court on<Civil Procedure Law of the People’s Republic of China> in 2014 (hereinafter referred to as the New Judicial Explanation of Civil Procedure Law), these provisions constitute the system of judicial confirmation procedure of the mediation agreement, and defined a series of equirements in the application of judicial jurisdiction, domination, acceptance, investigation, referee documents, legal consequences, the withdrawing of the confirm application, the cost, relief program of the third litigant, and making the application of the process legal and reasonable. However, the judicial confirmation procedure of mediation agreement is not perfect, in legislation and in practice there are still a lot of problems in legislation and practice, which need to be explored further.This essay is divided into four parts to discuss the judicial confirmation procedure of mediation agreement:The first part is the basic theory of the judicial confirmation procedure of mediation agreement, which includes the concept, characteristics, legitimacy analysis and principles.The second part is the comparison to other countries and regions in related systems, introduce the mechanism of judicial confirmation of mediation agreement in France and recognized the effectiveness of the judicial review mechanism of township and municipal government in Taiwan region and make a comparative analysis between township government mediation system of Taiwan region and the judicial confirmation procedure of mediation agreement system of Chinese mainland.The third part describes the current situation of the judicial confirmation procedure of mediation agreement and its problems in our country, the system of legislative evolvement, practical operational aspect and the problems in practice, the progress of the contents stipulated in the legislation and the existing problems.The fourth part, give some advice on improving the judicial confirmation procedure of mediation agreement, put forward my own views on a number of issues and problems in legislation and practice, which have been mentioned in Part three.