The Relationship among People's Mediation, Administrative Mediation and Court Mediation

I the concept of administrative mediation

Mediation refers to the activities that the two parties to a dispute conduct ideological mediation and education through a third party under the auspices of a third party in accordance with the provisions of laws and policies, so as to promote mutual consultation, mutual understanding and mutual accommodation, and reach an agreement voluntarily according to law, thus solving disputes. According to the law of our country, administrative mediation is the mediation of specific civil disputes and minor criminal cases by the state administrative organs within their administrative functions and powers. The scope of mediation includes civil disputes, economic disputes and minor criminal disputes.

In China, a populous country, with the constant change of social life and the continuous development of economic exchanges, a large number of civil and economic disputes conform to objective laws. How to solve these contradictions and disputes and promote social development is a category that we should think about. According to China's existing laws, China's mediation system includes three major mediation systems: court mediation, people's mediation and administrative mediation. In addition, there are arbitration mediation and lawyer mediation. These mediations have both connections and differences, which constitute a complete mediation system in China. The legal effect of court mediation and people's mediation is very clear, so this paper will not study it. I just want to make a superficial understanding of the legal effect of administrative mediation in order to attract more attention and contribute to the administrative mediation work in China.

Second, the nature and role of administrative mediation

Compared with court mediation, administrative mediation, like people's mediation, belongs to non-litigation mediation, and the agreement reached is not legally binding, but it should be binding on the parties. Because administrative mediation, like people's mediation, is a voluntary mediation activity, according to the existing law, the parties should consciously fulfill the agreement reached. Therefore, it can be said that the agreement reached by administrative mediation should still be as binding on the parties as the agreement reached by people's mediation.

In China, since the period of the new democratic revolution, the grassroots people's governments in the revolutionary base areas have the responsibility to mediate civil disputes and minor criminal cases. After the founding of People's Republic of China (PRC), administrative mediation gradually developed into various forms. In addition to grass-roots governments mediating general civil disputes and minor criminal cases, the law also stipulates that some state administrative organs are responsible for mediating specific civil disputes and economic disputes. The functions of China's administrative organs are mainly embodied in two major functions: administrative management and administrative law enforcement. Administrative mediation is a way for state administrative organs to manage and supervise economic activities and social life. It can not only mediate disputes between citizens, but also mediate disputes between citizens and legal persons, legal persons and legal persons about rights and obligations. This is an important feature different from people's mediation. Over the years, China's administrative organs have handled a large number of economic disputes and civil disputes through mediation. Many disputes resolved through mediation are consciously performed by both parties and rarely resolved through litigation. It can be said that administrative mediation has played an important role in protecting the legitimate rights and interests of citizens, legal persons and other organizations from infringement, adjusting economic and social relations, maintaining social stability and promoting socialist economic construction.

Third, the types of administrative mediation.

At present, there are many kinds of mediation that our administrative organs can carry out according to law. It can be said that administrative organs can basically mediate disputes in the process of exercising administrative functions. However, administrative mediation mainly refers to the following categories: (1) mediation by grassroots people's governments. Mediation of civil disputes and minor criminal cases has always been a duty of the grassroots people's government in China, which is mainly carried out by judicial assistants of township people's governments and sub-district offices. Judicial assistants are members of grassroots people's governments and judicial administrators. In addition to guiding the work of people's mediation committees and legal publicity, they also mediate a large number of disputes in person. (two) the mediation of the state contract management authority. China's "Contract Law" stipulates that when there is a dispute over a contract, the parties may agree to arbitrate or bring a suit in a people's court. The contract management organs stipulated by the state are the State Administration for Industry and Commerce and the local administrations for industry and commerce at all levels. Economic disputes between legal persons, individual industrial and commercial households, citizens and legal persons may apply to the administrative department for industry and commerce for mediation. (3) Mediation by public security organs. China's "Regulations on Public Security Punishment" stipulates that public security organs can mediate and deal with acts that violate public security management, such as fighting and damage to other people's property caused by civil disputes, if the circumstances are minor. China's "Measures for Handling Road Traffic Accidents" stipulates in Article 30 that the public security organ shall organize the parties and relevant personnel to mediate the damage after finding out the cause of the traffic accident, determining the responsibility for the traffic accident and determining the loss of the traffic accident. This is the right given by laws and regulations to the public security organs to mediate, which is conducive to properly solving disputes and enhancing the unity between the parties. (4) Mediation by the marriage registration authority. China's marriage law stipulates that if a man or a woman files for divorce, the relevant departments can mediate or directly file a divorce lawsuit with the people's court. At the same time, the law stipulates that if both men and women divorce voluntarily, they should apply to the marriage registration authority at the same time. Therefore, the marriage registration authority can also mediate the marriage parties, which is conducive to the normal development of marriage and family.

Four, the principles and methods of administrative mediation

Administrative mediation, like court mediation and people's mediation, should persuade the parties to make mutual understanding and accommodation on the basis of finding out the facts, distinguishing right from wrong and distinguishing responsibilities, so that the parties can voluntarily reach an agreement to resolve disputes in accordance with laws, regulations and relevant policies. Therefore, legality and voluntariness are the principles that mediation must abide by. In addition, administrative mediation, like people's mediation, must adhere to the principle of protecting the litigation rights of the parties. This essence is closely related to the principle of voluntariness. If the parties are unwilling to mediate, mediation fails or they go back on their word after reaching an agreement, one or both parties have the right to bring a lawsuit to the people's court. This is the litigation right given to every citizen by law. There are various flexible methods of mediation, which are related to the knowledge and experience of specific mediators. But on the whole, in the process of mediation, we should do in-depth investigation and study, listen to the opinions of the parties with an open mind, find out the case, explain the case kindly and patiently, be patient and meticulous, be emotional and rational, and adhere to the working methods of persuasion, education and convenience for the masses. Over the years, there are numerous empirical methods of administrative mediation.

On China's Civil Mediation System

Civil mediation is an important basic principle of China's civil procedure law. Doing a good job in civil mediation is of great practical significance for resolving contradictions in time and promoting the normal cycle of social transactions. According to the provisions of the Civil Procedure Law, China's civil mediation system can be divided into litigation mediation and non-litigation mediation. Article 9 of the Civil Procedure Law stipulates that "when trying civil cases, the people's courts shall conduct mediation according to the principle of voluntariness and legality; If mediation fails, a judgment shall be made in time. " At the same time, Article 16 of the Civil Procedure Law also provides for mediation outside litigation: "The People's Mediation Committee is a mass organization that mediates civil disputes under the guidance of grassroots people's governments and grassroots people's courts. The People's Mediation Committee conducts mediation in accordance with the law and the principle of voluntariness. The parties shall perform the agreement reached through mediation; If you are unwilling to mediate, fail to mediate or go back on your word, you can bring a lawsuit to the people's court. If the people's mediation Committee mediates civil disputes and violates the law, the people's court shall correct it. "

I. Voluntary and legal litigation mediation system

Litigation mediation system refers to the system in which the people's court presides over and urges the parties to reach an agreement and resolve it through consultation on the basis of finding out the facts and distinguishing right from wrong and according to the principles of voluntariness and legality. Voluntary legal mediation system evolved from the trial of civil procedure law with mediation as the core. People's courts try civil cases and settle civil disputes by mediation, which is a fine tradition of China people's judicial work and a successful experience of civil trials in China.

1, the meaning of voluntary and legal litigation mediation system. According to the provisions and interpretation of China's Civil Procedure Law, voluntary and legal litigation mediation is a basic principle of China's civil litigation, which mainly includes the following meanings: First, the people's court should close the case that can be mediated in the trial of civil cases. However, cases that are not suitable for mediation, such as cases that adopt special procedures and cases that are legally valid or invalid, should not be closed by mediation. Second, mediation must follow the principles of voluntariness and legality. "Voluntary" means that the parties must voluntarily carry out mediation activities, and the contents of the mediation agreement reached between the parties must be voluntary. The people's court shall not force the parties to adopt mediation or reach a mediation agreement. "Legality" means that the contents of the agreement reached by both parties must be legal, and the process of mediation by the people's court must strictly follow the procedures and principles stipulated by law. Thirdly, mediation runs through the whole process of litigation, that is, at any stage of litigation, whether it is the first or second trial, whether it is the pre-trial preparation stage or the trial stage, the people's court can conduct mediation as appropriate. Fourth, mediation, like judgment, is a way for people's courts to solve civil cases. If the case can be mediated, it should be mediated; If mediation fails or fails, a judgment shall be made in time and the relationship between mediation and judgment shall be correctly handled.

2. Problems existing in litigation mediation system in trial practice. The litigation mediation system presided over by the people's court has been playing an important role in China's civil litigation system. On the one hand, a large number of civil and commercial disputes are resolved through mediation in trial practice. On the other hand, litigation mediation has long been highly valued by legislators and academics. However, with the continuous development of China's reform and opening up and the construction of socialist market economy, the current litigation mediation system has the following defects in theory: (1) Litigation mediation softens the strictness of procedures, which will lead to misconduct of judges and confusion of trial activities. (2) Litigation mediation softens the constraints of substantive law, which leads to the hidden illegality of mediation results and the inconsistency of handling cases. (3) Litigation mediation itself implies coercion, which conflicts with the modern concept of rights. The concepts of "supremacy of rights" and "inviolability of legal rights" are highly respected by modern people. Protecting the legitimate rights and interests of the parties is the basic principle determined by the civil procedure law and the main task of civil trial. But judging from the trial practice, the success of mediation is often at the expense of the obligee being forced to give up some or even most of his rights. (4) If the mediation agreement conflicts with the general principles of civil law and contract law, the parties have the right to regret it. In judicial practice, there are still the following problems in the litigation mediation system: (1) One-sided understanding of the reform of trial mode is the reform of trial mode, which pays attention to court hearing and ignores in-depth investigation and research. Pay attention to resolving contradictions in court, but ignore resolving contradictions at the grassroots level. In addition to investigating and collecting evidence directly related to the case, the judge should also understand the local social conditions and people's feelings, grasp the thoughts and emotions of the parties, take decisive measures, and even mobilize all forces to resolve contradictions. Preventing the intensification of contradictions and maintaining the stability of litigants is the primary task of grass-roots courts in trying civil disputes, and it is also the most worrying and headache thing for judges of grass-roots courts. Once there is a murder or conflict in the litigation stage, it is difficult to explain to the public. How to improve the judge's ability to control the trial by holding a court session is of course the focus of the reform of the trial mode, but being good at mediating civil contradictions and disputes is also the essential basic skill of grass-roots judges, and the latter is precisely the performance of the judge's comprehensive quality. Most of the parties faced by grass-roots courts and people's courts lack legal knowledge. Many people don't hire lawyers. If careful mediation is not done, even if the judgment is fair, the parties affected by the unfavorable judgment always blame the judge's arbitrary judgment, which is psychologically unbearable, opposes the judge and entangles the lawsuit. (2) One-sided emphasis on direct hearing, not doing the work of the parties. Some courts regard the direct hearing rate as an index to evaluate the reform of judges' trial methods, and stipulate that mediation can only be carried out at the hearing; Some courts stipulate that judges are not allowed to meet the parties and their agents before the trial; Some courts also stipulate that all cases are scheduled by the filing court, and it is stipulated that the file can be handed over to the presiding judge three days before the trial. The purpose of these new measures is to prevent the trial judge from being biased, preconceived, dishonest and handling human cases, which is understandable, but the negative impact of these bans is to prevent the judge from investigating and studying and weaken the mediation function. (3) One-sided pursuit of court verdict rate and court settlement rate, court mediation is a mere formality. The reform of trial mode pursues fairness and efficiency. As far as the efficiency of handling cases is concerned, it should be considered as efficient as long as it does not exceed the statutory trial limit. In some places, the rate of sentencing in court and the rate of closing cases in court are used as indicators to evaluate the reform of trial methods, and the rewards and punishments for the judges handling cases are realized layer by layer, leading to comparison and fraud; Some courts have set stricter trial limits than those stipulated by law, which virtually lock the litigation mediation in the trial.

3. The reform of litigation mediation system in China. The author believes that it is imperative to reform the court mediation system in China. The general idea is: under the current civil procedure laws and regulations, combined with the reform of the court's civil trial mode, the adjustment of the internal organs of the court and the re-division of functions, especially after the large-scale filing system is scientifically established and effectively operated, the court mediation will be independent of the trial court, and a special mediation agency will be set up in the filing court to mediate. Its operating procedure is: after the court files a case, it can ask the parties whether they agree to mediation. If the parties agree to mediation, the case shall be submitted to a mediation institution for mediation within the prescribed time limit. If mediation fails within the prescribed time limit, the case shall be transferred to the court of first instance for trial and judgment, and the court of first instance will no longer preside over mediation. If both parties reach a settlement by themselves, the parties may apply for a "consensus judgment" unless the plaintiff withdraws the lawsuit. On the one hand, this scheme isolates the communication between judges and mediators and their opinions on case handling; On the other hand, it lightens the case pressure of the trial court, avoids the long-term adjustment of the case, and makes the trial court live up to its name. Once the parties reach a mediation agreement, it is legally binding on both parties and irrevocable. The relevant provisions on the service of mediation documents shall apply to the service of judgments. If it is invalid or revoked, either party may bring a lawsuit to confirm the invalidity or revocation within the specified time limit.

Second, litigation mediation (people's mediation)

Mediation outside litigation (people's mediation) refers to the working principle that the people's mediation committee persuades the parties to education disputes to make mutual understanding and accommodation, reach an agreement and resolve disputes through patient and meticulous persuasion according to national laws, policies and social ethics. Although the civil procedure law of our country stipulates the mediation outside litigation, it is not an integral part of civil litigation, but closely related to civil litigation. People's mediation is a line of defense in civil litigation. Some civil disputes are settled through mediation by people's mediation committees, and no longer through litigation. Mediation outside litigation is the originality of China's judicial work and China's reliance on people's mediation organizations to solve civil disputes. It is called "Oriental Experience" and "Oriental Flower" by some western scholars. According to the statistics of the grass-roots department of the Ministry of Justice, in the past, the proportion of people's mediation and court civil trial cases was 14: 1, that is, the case was closed through mediation 14, and the lawsuit was brought to the court 1, but now this proportion has dropped to about 1: 1, that is, the case was closed through mediation. Under the new historical conditions, how to strengthen the guidance of people's mediation, how to standardize the selection, training and mediation of mediators, and how to better play the role of mediation outside litigation as the first line of defense to resolve social contradictions and disputes are all topics that people's courts and judicial administrative organs should seriously study under the new situation.

1. There are two important differences between mediation outside litigation and mediation in litigation of people's courts: First, people's mediation is not a necessary procedure in litigation. After a civil dispute occurs, if the parties choose people's mediation to solve it, it must be voluntary and the litigation rights of the parties must be respected. Second, China's Civil Procedure Law stipulates that the government and people's courts have the obligation to guide people's mediation, and the people's courts and judicial administrative organs should strengthen their guidance on people's mediation. According to Article 16 of the Civil Procedure Law, the mediation work of the People's Mediation Committee, a non-litigation mediation organization, is guided by the people's court. If the people's mediation committee mediates a civil dispute in violation of the law, the people's court has the right to correct it. The people's courts and judicial administrative organs shall strengthen the guidance of people's mediation.

2. Motivation analysis of developing the mediation system outside litigation. From the historical statistics, the litigation mediation of the people's courts has played a positive role, but due to its inherent defects, this system has opponents in theory and abusers in practice, and there is some controversy. The theoretical basis of mediation outside litigation is the principle of party autonomy and the principle of punishment, so there is no theoretical problem in actively carrying out this work, and a large number of social contradictions have been digested in practice, which has broad development space. Specifically, the development of mediation outside litigation has the following motives. (l) Market forces to improve efficiency. Although mediation costs, it is much lower than litigation cost. Litigation is often repeated several times, which is not conducive to business activities. The eternal law that "time is money" and the low cost of mediation are the market power to promote the development of mediation. (2) Relatively flexible operation mode. Because the non-litigation mediation agreement is reached by both parties on the basis of equality and voluntariness, it not only considers the compliance with the law, but also considers factors other than other laws (such as human feelings), especially the factors of future development. It is a way of mutual understanding and accommodation, and the parties can predict the outcome. However, the lawsuit only considers the facts and the applicable law, which is not flexible and it is difficult for both parties to predict the outcome. (3) Harmonious and precious social motivation. Mediation outside litigation can maintain the harmonious relationship between the parties, especially between neighbors and partners. Litigation, on the other hand, is easy to tear the face and freeze the relationship, which is not conducive to harmonious coexistence among members of society. Harmony is the life criterion under China's traditional thought. In practice, many people choose mediation, and society and law also give great support. (4) the requirement of reducing the burden on the court. The more developed the market economy, the more complicated the communication methods and the more contradictions and disputes. In particular, the rapid economic development, the socialization of production methods, the increase of contradictions and disputes, the court is overwhelmed. The best way to solve the court's burden is to develop mediation outside litigation and divert cases. A large number of disputes will be solved outside litigation, and the burden in the court will naturally be reduced.

3. Reform and strengthen the mediation system outside litigation. Because the mediation system outside litigation plays a huge role in social life, there is a huge room for reform, and the cost and benefit of reform far outweigh the cost, so it is of great practical significance to develop the mediation system outside litigation in China. There are several key points in reforming and strengthening China's mediation system outside litigation: (1) People's mediation should be highly valued. People's mediation has a long tradition in China and is an important part of judicial administration. Since the founding of New China, under the guidance of Party committees, governments and judicial organs at all levels, people's mediation has played a great role in consolidating state power, resolving contradictions among the people and maintaining social stability. Article11of China's Constitution stipulates that "residents' committees and villagers' committees shall set up people's mediation committees to mediate civil disputes ...". This determines the legal status of people's mediation from the fundamental law of the country. It is also stipulated in article 16 of China's civil procedure law. For a long time, in the practice of people's mediation, although some places need to be further improved, the people's mediation system has a certain position in China's legal system construction. Under the realistic conditions of the establishment of China's socialist system and socialist market economic system, a large number of contradictions among the people have become the main social contradictions in the new period. From the types of cases accepted by the people's courts, it can be seen that conflicts of interest have accounted for the vast majority, and internal contradictions at the grassroots level are dominant. The existence of these social contradictions and disputes directly affects the normal operation of the socialist market economy, the healthy development of society and the stability of political power, and must be resolved in time. At present, there are about 1 10,000 mediation organizations at all levels in China, and people's mediators 1 10,000 people. This is a very large team, which can give full play to its positive role. They play an irreplaceable role in resolving various social contradictions in urban and rural areas and maintaining social stability. Generally speaking, social contradictions and disputes should be solved by relying on the social contradictions and disputes resolution mechanism as much as possible. Only when the society can't solve it, can we use the national coercive power (such as public security and courts) to solve it, which is conducive to the long-term stability of the country. People's mediation is an effective force in the mechanism of resolving social contradictions and disputes in China, and it should be the first line of defense to solve contradictions among the people, and the people's court is the last line of defense. Otherwise, not only the effect is not good, but also the court is overwhelmed. (2) Giving the mediation agreement outside litigation legal effect. To make people's mediation play a good role as the first line of defense, we must first solve the legal effect of people's mediation agreement. The author believes that the mediation agreement has the legal effect of the contract. Our country's law has no clear stipulation on this, but there is no clear negative stipulation. According to the definition of contract in the current General Principles of Contract Law and General Principles of Civil Law: "A contract is an agreement between the parties to establish, change and terminate civil relations", if the mediation agreement does not violate the relevant laws and regulations, it is a voluntary agreement between equal subjects under the auspices of the people's mediator, and the people's court seems to regard it as a contract, which is conducive to the people's mediation Committee to solve a large number of contradictions and disputes at the grassroots level and to the establishment of China's credit system. If the mediation agreement has no legal effect, it will seriously restrict the development of people's mediation, the people's mediation system will gradually shrink, and the role of people's mediation will not be effectively played. Under the condition of market economy, if a large number of contradictions and disputes are solved only by litigation, it is not conducive to the establishment of socialist market economy and long-term social stability. Although the "Contract Law" lists several kinds of contracts such as sale, loan, lease and gift in the specific provisions, this does not mean all types of contracts. For example, the definition of insurance contract in the Insurance Law, as well as the names of enterprises and image ambassadors, portrait use contracts, duckling supply contracts and adult duck recycling contracts signed by roast duck restaurants and farmers are all unknown contracts. After disputes arise over these nameless contracts, the people's courts and arbitration institutions will make a ruling according to the general principles of law, according to the agreement of the parties to the contract and referring to the relevant legal provisions of the contract, but it will not be regarded as a contract. Therefore, most of the agreements reached by people's mediation have the characteristics of anonymous contracts and should have the effect of contracts. What's more, the general principles of China's current contract law also stipulate that "the parties may conclude a contract in written form, oral form and other forms". An oral agreement can still be used as a contract, and a mediation agreement reached by both parties on an equal and voluntary basis with the assistance of a mediator should also be a contract with legal effect. (3) For an out-of-litigation mediation agreement that the parties have not repented within a certain period of time, the party entitled to it may apply to the people's court for enforcement. According to the above analysis, the most effective and intuitive way to give legal effect to the mediation agreement outside litigation is to give the legal mediation agreement the power of enforcement after the people's court exercises the power of judicial review. That is to say, after the people's court exercises the right of judicial review, as long as the agreement between the parties is not illegal and goes against the true intention of the parties, the content of the agreement should be valid, and the party entitled to the right has the right to apply to the people's court for enforcement according to the agreement. The "certain period" here can refer to the provisions of the Civil Procedure Law, that is, the mediation agreement reached under the auspices of the people's mediator will become legally effective after the written mediation agreement is signed; Or the parties themselves have agreed in the mediation agreement to allow a time to repent, and within this time, the parties have not raised any objection, then the agreement has legal effect, and if the obligated party fails to perform its obligations, the other party may apply to the people's court for enforcement. The application period refers to the provisions of the relevant civil procedure law. The natural person is one year and the unit is six months.

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