Disadvantages And Systematic Improvements Of Chinese Settlement In Litigation

The more complex the social life is,the more civil cases increase.In addition,the nature of cases is more diversified than before,which leads to the increase of court load,litigation delay and other problems.In order to make up for the shortage of litigation system and provide more choices for the settlement of parties’ disputes,the expansion of various non-litigation dispute resolution systems has become the trend of civil procedure system reform in various countries.Under this trend,litigation settlement,which fully respects the parties’ disposal rights and has a simple,efficient and low-cost dispute resolution system in procedure,is prevalent in many countries.Although China has stipulated the system of settlement in legislation,it does not have independence in procedure.It needs to be transferred to the procedure of the court mediation or withdrawal system.This non-independent model has caused many problems in practice.Therefore,starting from the problems of litigation settlement in practice,this paper analyzes the disadvantages of non-independent litigation settlement,and puts forward some suggestions to improve China’s litigation settlement system.The details are as follows.The first chapter studies the current situation of litigation settlement system in China from two aspects of legislation and judicial practice.In legislation,settlement is only a litigation right enjoyed by the parties;In practice,China’s litigation settlement is not independent,and it cannot directly lead to the end of the procedure.This settlement is only the reason why the case is transferred to the mediation procedure or applied for withdrawal.The first chapter also discusses the disadvantages of the two non-independent modes of litigation settlement in China.In the "settlement to mediation" mode,the litigation settlement is introduced into the court mediation procedure.Although the mediation agreement can have the same effect as the judgment by applying to the court for the production of a mediation statement,the two do not fit due to the differences between the two in system mode,application conditions and procedure operation.Under the mode of "settlement & withdrawal",litigation settlement is the parallel act of suit,while withdrawal is the unilateral act of suit,and the nature of the two is different.In the first instance procedure,the plaintiff can bring a lawsuit again,and the dispute has not been really resolved.In the second instance procedure,when the appeal is withdrawn,it will lead to the contradiction between the first instance judgment and the settlement agreement;When the lawsuit is withdrawn,because the plaintiff cannot bring a lawsuit against the original dispute again,it may turn the plaintiff’s creditor’s rights into natural debts.The second chapter is the legal principal analysis of the litigation settlement system.From the perspective of the development of litigation right theory,the dispute over the nature of litigation settlement has experienced a process from simple private law behavior theory,public law behavior to two attribute theory,which is consistent with the change process of litigation right theory.China’s litigation settlement is deeply affected by authority doctrine,and it is still under the theory of private law litigation right,and it does not realize the independence of litigation settlement.From the process of China’s litigation contractual reform,the litigation settlement system fully reflects the subjectivity and dominance of the parties in the litigation process required by China’s civil litigation contractual reform.The establishment and improvement of the litigation settlement system in China is in line with the trend of civil litigation contractual reform.It is also one of the important manifestations of the transformation of China’s litigation system from authority doctrine to litigant doctrine.The third chapter is the improvement suggestions of litigation settlement.This paper puts forward some suggestions on the improvement of the conditions,procedures,effectiveness and relief measures of litigation settlement.As for conditions,the third party can also participate in the litigation settlement.In terms of procedure,judges have the obligation to promote settlement;In terms of effectiveness,we should pay attention to the relief to the parties and deny the res judicata of litigation settlement;In terms of relief measures,the way of continuing the original litigation should be applied.The fourth chapter is the improvement of litigation settlement and the integration of other systems.In the terms of procedural law,through the improvement of litigation settlement,we can face up to the problems existing in court mediation and improve it;And the confirmation effect of the settlement agreement provides a procedural idea for the settlement of disputes outside the litigation;In the terms of substantive law,the settlement agreement should be included in the civil code as a typical contract to stipulate the concept,constituent elements and effectiveness,so as to realize the coordination and connection between civil substantive law and procedural law.