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Research On The Linkage Mechanism Of Litigation And Mediation In Family Disputes

Posted on:2021-04-22Degree:MasterType:Thesis
Country:ChinaCandidate:J L WangFull Text:PDF
GTID:2416330626957091Subject:Law
Abstract/Summary:PDF Full Text Request
The family is the most basic and extensive constituent cell of society.A harmonious family is the foundation of a country's prosperity,national rejuvenation,and social harmony.With the continuous development and progress of the economy and society,the mobility of the population has significantly increased,and the traditional family structure and people's concepts of marriage and family have undergone tremendous changes.In recent years,family disputes caused by blood relationship and marriage relationship are prone to occur frequently.The number of cases concerning family disputes in courts at all levels in China is large and the number of cases is increasing year by year.Facing the new features and changes in the current family affairs field,giving full play to the unique advantages of the mediation mechanism to properly resolve family disputes has important theoretical value and realistic meaning for strengthening and innovating social governance,maintaining social harmony and stability,and advancing the construction of the rule of law in China.In 2016,the Supreme People's Court issued the "Opinions on the Pilot Work on Reforming the Ways and Working Mechanisms of Family Trial",and launched the pilot work on reforming the way of family trials and working mechanism.Since the reform pilot,the concept and viewpoint of focusing on family dispute mediation priority and diversified mediation have been promoted by judicial practice.Domestic courts in various regions have actively explored new types of family dispute settlement methods through the action mediation and docking mechanism.The lawsuit moved to the mediation stage and achieved good judicial and social effects.The establishment of a family dispute mediation mechanism fully responds to the current concerns about the proper settlement of family disputes in the context of the current lawsuit explosion and the large number of cases.Taking into account the high affinities,significant ethics,strong irrationality,and specific public welfare characteristics of family disputes,the settlement of disputes must not only meet the micro-appeals of the parties,but also meet the people's growing needs for a better life and family affairs.The macro expectation of the trial work;not only to achieve the result of the settlement of the case,but also to repair the marriage and family relationship through psychological counseling,to achieve "peace";not only to the rigid judgment of the judicial mechanism on disputes,but also to the people The mediation mechanism's flexible care for disputes.It can be seen that in the new period,all sectors of society have placed high expectations on the mechanism for family disputes and mediation.However,by combing the status quo of the practice of the mechanism,the author found that the existing family dispute litigation and mediation mechanism still has problems such as relatively lagging legislation,poor mechanism connection,weak standardization of procedures,and insufficient mediation of mediation,and it is related to judicial reform.There is still a certain gap between the needs of the domestic dispute resolution mechanism and the requirements of the future family dispute resolution mechanism.To this end,the author analyzes the family dispute litigation and docking mechanism from the aspects of basic theory,practical development,foreign experience,and ODR application,and puts forward positive reform proposals for the improvement of the family dispute litigation and docking mechanism in view of the existing problems.It is beneficial to the proper resolution of family disputes,so as to comply with the new trend of "Internet + Law",realize the intelligent transformation of the traditional family dispute litigation and docking,and give the family dispute dispute resolution mechanism a new definition in the digital era.In addition to the introduction and conclusion,this article consists of five parts.The first part: the basic theory of the family disputes mediation and docking mechanism.This part first divides the family dispute litigation and mediation mechanism into two subconcepts: "family dispute" and "suit mediation butt".It discusses the meaning and characteristics of the two,and on this basis defines the family dispute mediation and docking mechanism.Connotation.Subsequently,the theoretical basis of the mechanism is further elaborated from the theory of active justice and the theory of multiple dispute resolution.Finally,the necessity of the family dispute adjustment mechanism is demonstrated from the perspective of the theory and connotation.The second part: A practical review of the mechanism for family disputes and mediation.This part first clarifies the institutional basis of the family dispute litigation and mediation mechanism from the legislative response level,and then selects the Yushan District Court of Maanshan City,Anhui Province and the Meishan City Court of Sichuan Province as a sample,summarizes local practices,and summarizes the family dispute mediation and docking mechanism.The current operation process finally focused on the problems in the actual operation of the current family disputes and mediation and docking mechanism,exploring the underlying reasons behind it,and preparing for the follow-up to make targeted and perfect suggestions.Part III: Lessons from the mediation system of Japan and Britain.In this part,Japan and the United Kingdom are selected from the civil law countries and the common law countries.The two countries each have their own characteristics of family dispute resolution systems.They examine the related system design of family mediation and analyze the domestic affairs of Japan and the United Kingdom.The practice in the docking and mediation of the disputes,from which we can extract the perfect experience of the domestic disputes and mediation mechanism for domestic disputes,and provide some ideas and references for the further development of the domestic disputes and mediation mechanism.Part IV: Suggestions on perfecting the mechanism of family disputes and mediation.On the basis of reviewing and analyzing the foregoing,and combining the experience and enlightenment of the Japanese and British national mediation system,this part proposes to further improve our country's dispute settlement and mediation mechanism to speed up the legislative pace of family case procedures,adhere to a moderate separation of investigations,and strengthen pre-litigation.Suggestions such as giving full play to the role of mediation,scientifically defining the scope of the extension of family mediation,releasing the organizational momentum of family mediation personnel,optimizing judicial confirmation procedures and the system of uncontested factual records.Part 5: Thinking about improving the ODR platform to advance the mechanism for family disputes and mediation.Based on the background of the "Internet +" era,this part explores the current bottlenecks based on the unique advantages of "ODR + Family Proceedings and Docking" in breaking through geographical restrictions,reducing rivalry,and pooling resources from multiple sources.On this basis,in order to promote the "ODR + Family Proceedings Docking" and establish a new normal of litigation and mediation docking,from improving the credibility of the platform,establishing a dual-track mediation team,promoting the effective sharing of information and data,strengthening the docking with smart court services,and playing a technical support role,etc.Aspects have been forward thinking.
Keywords/Search Tags:family disputes, the linkage mechanism of litigation and mediation, mediation
PDF Full Text Request
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