Review Of The Court Mediation System And Remodeling

Disputes exist where any society goes. As far as a society is concerned, what really counts is how to establish an effective dispute-settlement system.Now where China conciliation system of People's courts flaws is it is legislatively born deficient in a preceding procedure, which I term it the "procedure of fore-court conciliation". Suffering from such a deficiency, People's courts are burdened with overloaded cases. When it comes to balancing the value of litigation, it could be only of a window show if judicial reform turns to ignore this deficiency.Facing with the tough circumstances of litigation-explosion, People's courts are tired out with years-filed cases, with yearly rounds of re-judgments, appeals, retrials and it is for a way out of those difficulties that this article aims to contribute to my reflection on an effective judicial reform with a fore-court conciliation procedure established as a litigation filter.Part I begins court conciliation with introductory remarks on its concept, nature and characteristic of litigation limits, such as non-ending and high price. What the conciliation advantages that courts have, is its procedure value, namely, the value in saving potential litigations, high degree of autonomy of parties and quick litigation efficiency, in terms of shortened litigation period, simplified procedure, higher degree of substantial justice, social stability and over-leaped debates on entangled facts and rules.Part II: Comparing with foreign courts conciliation system, it can be firstly found out that our conventional court procedure of conciliation differs, in judicial position, with those of foreign countries as one model of "conciliation-style trail", although hardly found the same in foreign countries or regions. The difference lies where different system designs. Secondly, China judges mediate disputes both as procedure judges and conciliators. Thirdly, China People's courts come up with problems mentioned above due to the very defect in procedure of fore-court conciliation.Part III: Historically influenced by Confucius culture, it is of Chinese opinion, either in official or common level, to calm down disputes rather than file a humble lawsuit or answer a humble lawsuit.Pondering on court conciliation, this article examines in detail disadvantages or defects that People's courts have. The defect or malpractice of China court conciliation are that judges tend to conduct mandatory conciliation when they face to lose the powerIVof decision-making under external influence or interference, which can be basically concluded as non-independence of judges and non-independence of courts.Accordingly, basing no rules about fore-court conciliation in CIVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA, the hard truth of People's court is the practice of "floating trial", which means a trial without needed preparation for court function. As far as the purpose of litigation is concerned, I agree with the theory of multi-value, for it provides parties with more chances to communicate and understand, to compromise and balance mutual interest.As People's courts practice a litigation model of more litigant-centered and less court-centered, which can be termed as transitional model, the conciliation model that courts choose to conduct involves two considerations, that is, justice and feasibility, with justice realized by meeting both parties' multi-value and feasibility realized by harmonizing cultural difference. Even for the litigant-centered model, it is rational to combine conciliation procedure with trail procedure because fore-court conciliation does provide litigants with more chances to maximize compatible interest.As for the basic principle of court conciliation, it should be adjusted to practical circumstance, for there may be cases that in trial of civil cases, people's court shall not "distinguish between right and wrong on the basis of the facts being clear" when parties choose to ignore right-or-wrong judicial value, and that in respect to personal privacy or trade sec...