On The Mediation Of Civil Trial

In the developing process of human society, for any society and the leader social class, it is an important issue, which need to be solved, on how to properly solve the dispute and melt the contradiction, maintain and the stabilize social order, balance various aspects of the social relations, promote economy prosperity and the production development, safeguard country and society's long-term peace and good government. Civil mediation is an important way of solving dispute .Civil mediation system is important constituent of our country court judicial system, and is also an important research issues for the domain of current legal science theory. Especially in constructing harmonious social times, the civil mediation appears especially important in our country judicature practice. With the current judicial reform and the court work reform gradually deepens, the significance of civil mediation, the superiority value and the function are being known again and deepened. It becomes the solid service and a theoretical hot topic to consummate the mediation system and reconstruct court mediation system. However, at present our country accent examines gathers one and adjusts the primarily judicial practice way gradually to expose some malpractices, which has some certain influence to maintain stable society, construct socialism country under the rule of law. Now under the political context of Central Party Committee State Council summoned constructs the socialism harmonious society, the civil mediation system is facing the significant test, so it is necessary to carry on the essential reform. In this article, author will make the sketchy discussion about definition, principle and significance, comparison with foreign mediation system, the malpractice and the system reform .The full text altogether divides into four parts:The first part is about the outline of mediates system. This part makes the basic elaboration to the civil mediation from four aspects of the basic definition, the basic principle, the significance and the present situation, especially about the function of the civil mediation to construct the harmonious social. It also analyze reason of the social reason and the thought root of our country stressing the mediation.The second part is mainly about the foreign mediation system, simple showing the difference of our country's mediation system and the foreign mediation system on the historical background, the system nature, the system function, and the system programming. Through comparing our country civil mediation system and the foreign mediation system which aer in Korea Taiwan-area Japan and America, we reconsider our country civil mediation system center existing problems, and provide some beneficial enlightenment for our country civil mediation system reform.The third part is a foundation which this article presents argument. First it gives the full affirmation through the theory and the case to our country mediation system. Then it has carried on the exposition to the present mediation system malpractice, mainly includes: the litigant's free will cannot obtain the full realization; the civil mediation often follows judge to force to mediate or forces to mediate in disguised form, which is a big practice malpractice in the civil action system. This kind of malpractice appearance is related to judge troop's overall quality, also to one-sidedness of court control system. Front holds court to mediate the function the attenuation, holds a court hearing in the process empty to mediate the procedure to set; procedural relief is also insufficiently perfect after the mediation agreement achieved; the mediation agreement and the mediation book often can appear various slight defect; The mediation necessary system is insufficient perfect, because our country's mediates the system only stipulate the mediation basic system generally, but not made the explicit stipulation on the mediation way, surveillance in the mediation, the mediation punishment and the mediation personnel and so on. Thereby our country court civil mediation must be urgently strengthened and our country court mediation system must carry on the system reform.The fourth part is the solution of the third part, namely several suggestions to our country civil mediation system reform. This part altogether divides into eight aspects, strengthening the volunteer principle in the civil action, following the fact of the civil mediation, the principle of distinguishing clearly the responsibility must substitute to verify the fact selectively, and not distinguish wrong and right absolutely, legitimate principle must with not harming the country, the collective and the third person of benefit, the process of mediation must be in front of holding a court, the mediation before adjudgement only limit to the application of party, the restriction and supervising to the process of civil mediation, standard the way of civil mediation, regulating the effective time of civil mediation, canceling the right to pull back of party, ensuring the seriousness and compulsion of mediation agreement, establishing the surveillance mechanism to the mediates system, and the responsibility investigates system, and so on .this article propose author's viewpoint and hope to give help to the reform of our country legal system.