On the court mediation
|Keywords||Court mediation lawsuit reconciliation|
The court mediation, as a way to solve disputes, is the East Experiences by the reputation, and it has the dense Chinese characteristics. It has experienced dozens of years of difficulties and hardships. The court mediation has displayed emphatically major functions, and it also has exposed many questions. In order to glow the vitality and the vigor of the court mediation, it is necessary for us to examine this system closely again. The author tries to make expositions from the following aspects.In the first part of the article, the author introduces the concept of the court mediation and its nature and functions. The court mediation is a deed made by the parties who carry on the consultation over the contentious civil rights and interests managed and coordinated by the judges or is a deed which leads to reach an agreement after consultation. There are three viewpoints on the nature of the court mediation in the civil procedure law educational circles which are The Theory of Trial Behavior and The Theory of Handling Behavior and The Theory of the Combined Behaviors of Trial and Handling. The author thinks The Theory of the Combined Behaviors of Trial and Handling is in conformation with the current judicial practice. Because a civil case mediated successfully or not, it is mainly due to whether the trial behavior and the handling behavior can be exercised harmoniously. To the court mediation function, everybody is obvious to all, because it can promptly eliminate conflicts, and it can dispel the disputes, also it can reduce the number of the lawsuit links, and reduce the lawsuit cost, and it can bring about advance in entire society harmoniously and orderly and healthily.In the second part of the article, the author introduces the questions existed in our court mediation system. Though the court mediation system has displayed emphatically greatly affects for a long time in solving civil and trading disputes, it also exposes more and more malpractices. The author thinks there is non-adaptability between the court mediation and the market economy and the legal system compatibility. If the current court mediation does not conform to the way of the civil trial reforming requirement, it is disadvantageous to the litigant rights protection, and it will get up the reaction to the good economic order to the market economy. Further, the uncompromising contradictions exists in the court mediation, such as the contradiction between the compulsion and the will, and the contradiction between the functions and powers of judges which seems to be excessively thick and the nature of the court mediation, and the contradiction between the willfulness of the mediation procedure and the standard of the trial procedure, and the contradiction between the concessions to end suits and the protection of rights. The author set forth the urgently needs to reform and consummate the traditional court mediation from the contradictions.In the third part of the article, the author compares the court mediation system in civil actions with our court mediation system and foreign and the Taiwan area mediation system. The author analyzes the similarities and differences in mediation system between our court mediation system and overseas and in the Taiwan area civil action mediates after inspection. The same spots of our court mediation system and foreign and the Taiwan area mediation system are the court initiatively start mediation, and in the lawsuit reconciliation may be carried on in any stages or any main stages and it is set as prestage of procedure and so on. And from the aspects of the principles applied to and main bodies who apply to the system and the characteristics and the openness, the author elaborates the differences between our court mediation system and foreign and the Taiwan area mediation system and tries to find the places which we may profit from.In the forth part of the article, the author imagines the establishment of the dual structure of lawsuit reconciliation system and court mediation. There are three viewpoints on our civil mediation system namely: the theory of limitation of court mediation, and the theory of abolishing the court mediation, and the theory of separation of trial and court mediation. Further the author elaborates the necessity of the establishment of coexisting of the dual structure of lawsuit reconciliation system and court mediation and certain suggestions and the realistic actions which we may use to reconstruct the non -lawsuit of the court mediation, so we can advance and promote the court mediation system.