Research On The System Of Judicial Confirmation Of Mediation Agreement

The world is in an ADR research upsurge. At the same time, the people’s mediation system, which is known as ‘oriental experience’, can’t always give full play to its alternative dispute resolution mechanism in the "litigation explosion" time in our country, the reasons of which are many sided and deep. The alternative of the people’s mediation system in dispute resolution is reducing, which is closely linked with the changes of the times. Because of the inconsistent with the requirements of the times, the problems born with the set up of the people’s mediation system are constantly exposed and enlarged, leading to the drop in applicable rate eventually, in the process from ‘the acquaintance society’ to ‘the stranger society’.Fundamentally speaking, the disadvantages of the people’s mediation system is are the effectiveness and efficiency to settle the disputes, both of which influences each other. Under the auspices of the people’s mediation committee, after a series of consultations and concession and compromise, the parties to a dispute reach a mediation agreement, from which the hard work of the three parties is obvious. However, if one party goes back on his word that does not perform or completely fulfill the agreement, all that efforts would be meaningless, for it is not fair for the other two parties on one hand, and it makes the credibility and authority of the people’s mediation system is reducing continuously to a large extent on the other hand, resulting in the decline of the substitution effect in 2settling the disputes. Even if the people’s mediation agreement is still with civil contract effectiveness, the other party have to make him keep an appointment through the court when one party estoppels, which not only greatly increases the litigation exhaustion of the parties, but also is a waste of judicial resources.In this paper, by investing of reality to people’s mediation agreement judicial confirmation system’s development process, I want to show the necessity of establishing the system, sort out the disputes on the system theory and put forward my own view, and point out the insufficiency in this system theory with practice, during which the corresponding solutions and measures to solve the problem are presented.This paper can be divided into three parts, introduction, the main body and conclusion, of which the main body includes three chapters as follows:The first chapter is on the development and problems the of people’s mediation agreement judicial confirmation system, whose arising and developing is reviewed and made a simple comparison with the other people’s mediation system to highlight its role in the diversified dispute solving system, on which the system value of it is discussed to clarify its significance for the people’s mediation system. In the final part of this chapter, the author points out the deficiencies of the people’s mediation agreement judicial confirmation system from both law and practice.The second chapter is the explanation of theories of the people’s mediation agreement judicial confirmation system, analyzed simply and the author’s personal view is produced. This chapter can be divided into three parts. In the first part, author mainly explores the nature of the judicial confirmation system, in which different voices in academia are combed. There are four main views, such as the proceedings, the dependent judicial process, the executing process and the special procedure or the non-lawsuit procedure. The author believe that, to compared with The proceedings.The special procedure is used to confirm the existence of some fact in law. So the judicial confirmation should be seen as the special procedure. In the second part, the author analyzed the Res judicata of the judicial confirmation. The judicial confirmation should not have the same Res judicata with the judgment, which means that the judicial confirmation have the negative effect of the judicial 3confirmation. In the third part, the author arranged the basis of the compulsory executing of the judicial confirmation. When courts take action of compulsory executing, the basis should be the ruling of judicial confirmation. But the compulsory should be limited in the scope of what the people’s mediation agreement has recorded.In the third chapter, proposals on making the people’s mediation agreement judicial confirmation system perfect are raised, which is the heart of the last part, basing and drawing lessons from the current mediation and arbitration systems that are similar with it. In the second part, the author try to find a way to make the judicial confirmation system perfect from there aspects, like improving legislation, uniting the standard of judicial examination and enriching relief measures. The author amended the law so that if one part of the people’s mediation agreement applies to the court to start the judicial confirmation, the court will inform the other part after its examination. Once the other part mention an objection to the court in a reasonable due time, the procedure will not start. Besides which, the committee of the people’s mediation agreement should also have the right to ask for starting the judicial confirmation system. On this addition, if neither of the two sides mentions an objection to the court, the court will start the procedure. And, the author suggests that the standard of judicial examination should be united, the court should only exam the legality and the voluntary. As a special measure, the judicial confirmation ruling is not applicable to appeal or retrial. Last but not the least, the author thinks that the due time of revoking the judicial confirmation ruling of person other than involved in the case is not long enough. The suitable due time should be two years.In general, the people’s mediation agreement system, which is known as ‘oriental experience’, will not eliminate by the time. If we can find out a way to solve the problems which the people’s mediation agreement system have where don’t suit the requirement of the development of the age, the author believe that the traditional system will shine again. The judicial confirmation system is founded to support the people’s mediation agreement system, though the judicial confirmation system is not so perfect now, but it is no doubt the milepost to the people’s mediation agreement system. The judicial confirmation system in the actual operation of the process makes the people’s mediation system greatly enhance the adaptability to the requirements of the times. Of course, the judicial confirmation system has exposed problems which cannot be ignored, the author hopes that the suggestion can make contributions to the development of the system.