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The "Compulsory Mediation" System Of Civil Disputes In China

Posted on:2018-11-12Degree:MasterType:Thesis
Country:ChinaCandidate:B LiuFull Text:PDF
GTID:2346330518981826Subject:Law
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For a long time,as a diversified dispute resolution mechanism,mediation plays a role in the court trial practice to divert the court backlog and ease the contradiction between the " case and many people" of the court.However,with the rapid development of economic development and social reform in China,mediation system has appeared some problems in judicial practice,for example,in the understanding of " forced mediation ",some judges think that the " forced mediation " by some judges to solve the dispute by the means of contracting pressure and inducing pressure is the court.In essence," forced mediation" is not mandatory in the substantive sense,but only the enforcement of the conciliation proceedings.Specifically,the pointer to certain types of cases may be initiated directly without the consent of the parties.At present,China does not have specific laws and regulations on the definition and function of " compulsory mediation ",but the current litigation mode of " mediation and mediation " provides a prerequisite basis for " forced mediation ",and a series of advantages of mediation itself lead to judges more inclined to settle the case when hearing some types of civil disputes.At the same time,in the current social litigation explosion,the national judicial resources are relatively limited and even under the background of tension,mediation due to the flexibility of its procedures,is conducive to the effective resolution of cases,can also ease the tension of judicial resources.In 2012,the first mediation of article 122 of the civil procedure law of China has aroused the attention of many scholars.it is considered that the compulsory mediation is formally clarified in our law,that is,directly excluding the will of the parties,and whether the right to decide whether to initiate mediation and the right to be handed over to the members of the court will be discretionary.This has also caused the attention of the theoretical and practical circles to " forced mediation ".This paper studies the legal provisions of China and the compulsory mediation system of civil disputes in some foreign countries,analyzes the different views on the compulsory mediation,and defines the interpretation of " compulsory mediation" on the basis of comprehensive consideration of domestic and foreign research results and the situation of our country.At the same time,the compulsory limit of " compulsory mediation" and the scope of application of the case are specifically described.The author believes that the civil dispute " compulsory mediation" not only does not conflict with the voluntary principle of mediation,and does not deprive the parties of the procedural option and the right of adjudication,but has certain procedural benefits and practical value.However,in the concrete practice operation,the civil dispute " compulsory mediation" also appeared a series of problems: such as lack of perfect legislation to regulate,the program guarantee is insufficient,may raise the voluntary principle of the parties and the principle of free punishment,infringe the right of appeal of the parties and application for retrial,easily lead to the court function fuzzy,reduce judicial authority and so on.On this basis,this paper discusses how to establish a scientific and reasonable civil dispute " compulsory mediation" system from the aspects of separation of trial role,mode and personnel selection in mediation process,the establishment of sanctions safeguard measures and the relief mechanism of mediation cases.
Keywords/Search Tags:compulsory mediation, compulsory initiation, ADR
PDF Full Text Request
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