| The mediation system,as one of the ways to close incidental civil litigation cases,is already a relatively mature system.Based on the thinking of procedural law,combined with the development process of legal texts,this paper re-clarifies the mediation system of incidental civil litigation,finds the problems and puts forward corresponding countermeasures.In the introduction,the research background,research content,research status and research methods of this paper are briefly introduced.In the body paragraphs,firstly,this paper analyzes the concept,characteristics and theoretical basis of the mediation system of incidental civil litigation.The mediation system has three characteristics: the procedural incidental,the indirectness of sentencing and the enforceability of the mediation result.The theoretical basis of the mediation system includes Confucian idea of “harmony is expensive” and references to restorative justice.Secondly,analyzing the relationship between the incidental civil litigation system and related systems,including criminal mediation system,civil mediation system,and criminal reconciliation system,and making the nature of incidental civil litigation mediation defined more clearly by comparing the incidental civil litigation mediation system and various systems.Thirdly,based on the time when the mediation system was first stipulated in the main body of the Criminal Procedure Law,in the way of procedural thinking,the mediation system is divided into the mediation system before 2012 and the mediation system after 2012.On the basis of analyzing the changes of text,to pay more attention to the operation of the program.To evaluate and analyze the program operation in each period.Finally,based on the analysis of legal texts and research,to put forward the problems existing in the operation of the incidental civil procedure procedures.The problems are mainly reflected in five aspects: legislative frameworks dominated by judicial interpretation,insufficient guarantees of voluntariness of Mediation led by excessive involvement of judges,irregularities of mediation start time and initiator,ambiguities of the scope of the mediation host and the positioning of the mediation participants and mediation assistants and ambiguities of the relationship between compensation and sentencing.Subsequently,putting forward for five issues targeted recommendations.As a mature system,the incidental civil litigation mediation system is stipulated in the Criminal Procedure Law.As part of the procedural law,it should pay more attention to its procedural nature.Only under standardized procedures,can the incidental civil litigation mediation system be better accepted by the masses and better contribute to the construction of the socialist rule of law. |
