An Empirical Study On The Mechanism Of Undisputed Fact Recording

The non-dispute fact recording mechanism is a litigation and mediation docking mechanism promoted under the background of deepening the reform of diversified dispute resolution mechanism,which is conducive to promoting the refinement of litigation and mediation docking,maximizing the mediation effect and improving judicial efficiency.Through the theoretical analysis of the mechanism of undisputed fact recording,it is found that the mechanism of undisputed fact recording lacks theoretical guidance,the legal nature of fact recording is not clear,and involves many theories such as the principle of autonomy of will,self-admission,evidence contract,etc.,which may violate the principle of confidentiality of mediation,and is difficult to be unanimously recognized by the theoretical circles.The undisputed fact recording mechanism has been tested for ten years since 2012,but this mechanism has not been recognized by legislation and mainly appears in reform documents.Therefore,it is necessary to investigate the operation status of this mechanism from an empirical perspective.Based on the analysis of the provisions of some trial documents and existing judgment documents concerning the mechanism of recording undisputed facts,combined with the empirical data obtained from questionnaires or interviews with different groups of judges,lawyers and mediators,It is found that in the process of operation of the mechanism,there are many practical constraints,such as the defects of the mechanism,such as the generalization of the record subject and the disunity of the time,the randomization of the scope of the record fact,the diversification of the record carrier,the absence of the mechanism of objection or regret,the low application rate and adoption rate of the record of the undisputed fact,and the different attitudes of the main body to the mechanism.In view of the dual dilemma of theory and reality,we should respond to the existing problems with appropriate medicine.In terms of jurisprudence,it is necessary to strengthen the theoretical guidance and clarify the value orientation: it can be considered to strengthen the parties’ consciousness of evidence contract based on evidence contract;The theory of classified confidentiality of mediation information is introduced to allow the "primary confidential information" in mediation to be disclosed to the proceedings,so as to break through the confidentiality principle of mediation to a certain extent and provide legal sources for undisputed facts to enter the proceedings.We should pay equal attention to the effectiveness and fairness of dispute settlement,and carry out the procedures participation and the principle of honesty and trustworthiness.Improve the legislative norms and provide institutional support:clarify the evidential attributes of undisputed facts,the limited scope of recording facts and the revocable or invalid situations,and standardize the operation of recording mechanism.Optimize the application of the mechanism and improve the quality and efficiency of operation: the professionalization of the mediator leads the application and standardization of the mechanism and gives full play to the role of alleviating the burden of litigation;Explore the default prerecording mode to improve the application rate of undisputed fact recording mechanism.Improve the review procedure and improve the efficiency of adjudication: conduct formal review,substantive objection review and bottom-finding review of recorded facts,transform undisputed facts in mediation into adjudication facts in litigation,and improve the adoption rate of recorded facts.The above strategies are expected to be beneficial to the operation of undisputed fact recording mechanism in the future.