On The Construction Of Pre-pleading Mandatory Mediation For Family Cases In China

This dissertation aims to investigate a special civil mediation system applying to the field of family dispute——civil pre-litigation compulsory mediation.This system has not yet been established in China,but its institutional basis has been reflected in the pilot reform of our country’s dispute resolution mechanism.However,the compulsory’s feature contradicts the voluntary principle and the registration system,and there is no theoretical consensus on the limitations of the parties’ right to request for judgment and the right to choose procedures.the degree of compliance with China’s legislation and practice has not been obtained.Proving that the framework and specific structure of the system are not perfect.Although China has accumulated a lot of experience in using traditional mediation to resolve family disputes,civil pre-litigation compulsory mediation as a new system design still needs to be tested by practice,that is,whether the system is feasible in China also requiring further discussion.Based on the resolution of the above problems,and the judicial and practical activities in the field of national disputes in our country,and on the basis of drawing other regions experience,we put forward the idea of the construction of a civil pre-litigation compulsory mediation in our country.this dissertation analyzes from four aspects:The first part: the development trend of our country’s dispute resolution mechanism.According to the investigation of the legislation and the summary of practical experience,the author finds that there are three development trends in the mediation and settlement of national disputes in our country: "independence","non-litigation","pre-litigation,compulsory"."Independence" is manifested in the unsuitability of the mediation and reconciliation in the field of family dispute resolution.Family dispute mediation is becoming an independent mediation process."Non-litigation" is manifested in the application of authoritarianism,non-confrontational structure,non-disclosure principle,confidentiality principle,procedural guarantee principle and other non-litigation procedures in the field of domestic disputes."Before litigation,compulsory" manifests in practice as the representation of pre-procedure mediation of family disputes.These three trends may provide a constructive basis for the compulsory mediation system before litigation in our country.The second part: the legitimacy of the compulsory mediation system before litigation in our country.The analysis of legitimacy starts from the perspective of value analysis,including the value of procedural justice and the value of procedural benefits.The former constitutes the rational basis for compulsory mediation before family disputes and the latter constitutes the social basis.It also discusses the issue of thereasonable limitation of the right of referee’s request and the choice of procedure as an independent procedure that is mandatory to start.Finally,it is about compulsoryness that does not involve voluntary agreement.The final result of mediation is the legal result of the parties ’double agreement.The third part: The feasibility of compulsory mediation before litigation in national disputes.The feasibility analysis includes the analysis of the following aspects: the personal attributes of family disputes are suitable for settlement through family dispute pre-litigation mandatory mediation;legislation and practice provide institutional space and experience accumulation for the family dispute pre-litigation mandatory mediation system;the maturity of Japan and Taiwan The system can be used as a reference to provide a basis for China to construct compulsory mediation before litigation in family disputes.The fourth part: the idea of compulsory mediation system before litigation in national disputes.Propose the construction of a mandatory mediation system before litigation in national cases.From the mediation start method,the mediation subject,the mediation procedure,the effectiveness of the mediation agreement,and the protection of the rights of minor children in mediation,the mandatory mediation system before the family action is specifically constructed.