On The Combination Of Intermediation And Trial In China's Civil Litigation

"Combination of intermediation and trial" mode refers to the dispute resolution mode in which intermediation and trial are combined with each other in our country's civil proceedings,which can be dynamically converted and operated interactively.Since the period of the New Democratic Revolution,due to the inadequacy of China 's legislative and judicial systems,the “combination of intermediations and trials” model has played an important role in the settlement of civil disputes,but there are also problems such as “emphasis on the entity over the procedure”.At the end of the 1990 s,due to a large number of forced mediations in judicial practice,coupled with China 's reform of the trial method and the implementation of the burden of proof system,the “combination of intermediation and trial” model was criticized,and the theory of “segregation of intermediation and trial” gradually became the mainstream in the academic world,the judiciary also responded to this call to a certain extent.However,the "separation of intermediation and trial" model is actually too idealized,and there are various drawbacks in judicial practice.As can be seen from the content of the "Civil Procedure Law of the People's Republic of China" revised in 2012,the scope of application of litigation mediation has greatly expanded,which is equivalent to the "revival" of the "combination of intermediation and trial" model in civil litigation.Therefore,it is necessary to explore the development process,theoretical disputes and normative path of the "combination of intermediation and trial" model in the framework of civil litigation in China.The traditional "intermediation and trial" model has been questioned for the following reasons: first,the forced mediation phenomenon has occurred from time to time,infringing on the rights of the parties;second,the judge avoids the referee out of the mentality of seeking benefits and avoiding harm.Third,the mediation judge also serves as the referee judge,the parties are afraid to disclose the true information of the case,and the judge is also susceptible to the influence of this information,affecting the formation of "inner conviction".Due to the continuous development of the mediation system itself,the "reconciliation" mode of " intermediation and trail " has undergone the reconstruction of "negative negation",which is more in line with the theoretical framework of civil litigation and judicial practice in China.This is based on: First,the implementation of the "combination of intermediation and trail " model does not require modification of the existing laws,as long as the correct regulations are implemented,good operational results can be achieved,and legislative and judicial costs can be saved.Second,regarding the shortcomings of the traditional "combination of intermediation and trail" model,the "revived" "combination of intermediation and trail" model optimizes its system and responds to the traditional questions one by one.Third,the “reconciliation” mode of “intermediation and trail” draws on the advantages of the “separation of intermediation and trail” model,and enhances the procedural guarantee for litigation mediation.At the same time,it also stipulates corresponding disciplinary measures for arbitrary and arbitrary abuse of power to eliminate itself the drawbacks.Under the principle of adhering to the mode of "intermediation and trial",how to better regulate it has become the top priority: we must adhere to the principle of litigation and respect the judge's professional judgment;considering the relationship between mediation and "trial power",According to the type of case and the progress of the procedure,reasonably grasp the scale of "find facts and distinguish between right and wrong";establish a mechanism for inducing parties' consensus,and promote the formation of consensus from positive and negative effects evaluation;provide diversified path selection and ultimately promote Cases are simplified and diverted,and the advantages of the "combination of intermediation and trail " model are used to maximize strengths and avoid weaknesses.