The Predicament And Outlet Of The Operational Mechanism Of Intercession Prepositive Procedure

On June 29,2016,the Supreme People's Court promulgated the "the Opinions on the People's Court to Further Deepen the Reform of the Multivariate Dispute Resolution Mechanism." It formally proposed to explore the establishment of mediation prepositional procedure,and to establish a batch of pilot courts in the country to explore the diversification of the dispute settlement mechanism.From the national level,it is an important measure to promote the redistribution of the resources of the dispute settlement and an important measure to promote the modernization of the national governance system and the governance capacity.From the judicial level,it is an important attempt to introduce social resources to solve disputes and alleviate the contradiction of" more cases and less court staff ".From a personal level,this is also a important way to reduce the cost of resolving disputes and "access to the justice".However,due to the indifference of legislation,multiple theories and various practice,and the development paradigm of "bottom-up and top-down" in the reform of China's judicial reform,In the process of the transformation of most courts from the pre mediation system to the intercession prepositive procedure in the practice,there are different stages and features in the process of the transition from the pre mediation system to the mediation prepositional procedure,which provides more valuable reference for the perfection of the legislation,but it also has the risk of damaging the unity of the procedure.Using the way of typological analysis to investigate the current practice of the pilot courts,we find that there are problems of unclear connotation and unclear extension in basic theories,confusion between the main body mode and the mediation agreement in the aspect of subject,problems of voluntary start-up and lack of legislative basis for compulsory start-up in terms of start-up,problems of lack of mechanism and inability to punish.There are still problems in scope,such as inadequate legislation,lag in theory,and difficult to contain expansionary trends in the aspect of guarantee,the tendency of mechanism not being smooth,and courts are reluctant to take the initiative to intervene instead of passive censorship in terms of cohesion.In order to solve the above problems,starting from the basic principles of civil procedure and the general rule of system construction,combined with the innovative practice and rules in judicial practice,we believe that the preposition procedure of mediation refers to the system that the court assigns a specific type of dispute that has not yet been made to the relevant special mediators or specially invited mediation organizations under the dual role of consensual induction mechanism and compulsory initiation.It is fundamentally different from the concepts of advance mediation,compulsory mediation and litigation mediation.On the subject,we should adhere to the core of specially invited mediators or specially invited mediation organizations,and make efforts to cultivate professional community and perfect the register system.On the start-up,the " binary pattern " should be organically combined with the cooperative induction mechanism and compulsory starting.On the guarantee mechanism,it should not be specially constructed,but should be strengthened the connection with the existing litigation guarantee system.On the scope,we should take the factor guidance law as the reference standard to prevent the arbitrary expansion of the scope of application.On the connection,we should adhere to the relative separation and passive examination of the trial.