A Rational Thinking of the People's Mediation System of China/UNE PENSEE RATIONNELLE DU SYSTEME DE LA MEDIATION POPULAIRE DE CHINE

Article excerpt

Abstract

People's Mediation is a kind of dispute resolution mechanism with Chinese characteristics. In 2011, People's Mediation Law of the People's Republic of China has came into force. This law is formulated to solve disputes among people in a timely manner, to maintain social harmony and stability, to reduce litigation cost and to relieve the burden of involved parties and so on. However, there are various kinds of defects in system designs and legal practices, and it still needs efforts with rational thinking to improve and complement the legal system.

Key words: The People's Mediation; Dispute resolution; Judicial confirmation

Résumé

La médiation populaire est une sorte de mécanisme de règlement des différends avec des caractéristiques chinoises. En 2011, la loi de médiation populaire de la République populaire de Chine a entré en vigueur. Cette loi est formulée pour résoudre les différends entre les personnes en temps opportun, afin de maintenir l'harmonie sociale et la stabilité, à réduire les coûts des litiges et à alléger le fardeau des parties concernées et ainsi de suite. Cependant, il existe différents types de défauts de conception des systèmes et pratiques juridiques, et il faut encore des efforts avec la pensée rationnelle en vue d'améliorer et de compléter le système juridique.

Mots Clés: Médiation du Peuple; Résolution des disputes; Confirmation judiciaire

1. THE PEOPLE'S MEDIATION SYSTEM OF CHINA

Alternative Dispute Resolutions (ADR) is processes or systems used to resolve disputes and relieve the pressure of courts in international communities. Especially in the day of urbanization and industrialization, "Lawsuit Explosion" has become a problem which needs to be solved urgently in China. With the rise of ADR, most disputes are settled without litigation. The People's Mediation refers to a process that a people's mediation commission persuades the parties concerned to a dispute into reaching a mediation agreement on the basis of equal negotiation and free will, and thus, solving the dispute between them. As an important form of ADR, the role of maintaining social harmony and stability is irreplaceable, and it is called as "Eeastern Experience" within the national and international communities. The people's mediation system has experienced the rise and fall process since the middle of last century. Summing up historical experience, People's Mediation Law of the People's Republic of China(hereinafter referred to as The People's Mediation Law) has formally come into force in Jan. 1st. 2011, marking the people's mediation work begins the legalization and standardization path.

People's Mediation tries to mediate disputes among the people in a timely manner, at the grassroots and on the spot, so as to maintain social harmony and stability. However, as the country's first law for comprehensively regulating the people's mediation work,due to system designs and legal practices defects, the people's mediation system needs improving in some aspects in practice.

2. RATIONAL ANALYSIS ON THE PEOPLE'S MEDIATION SYSTEM OF CHINA

2.1 The Typical Advantages of the People's Mediation is Reduced

The mass-based advantage of the people's mediation is reduced. "The People's Mediation law" article 5 provides, the people's mediation work shall be guided by the administrative department of justice. It might be a tendency of administrative mediation. At this stage, people's mediation work is in the period of transition from government dominating to government leading. Before the dispute resolution ability by society itself is formed, the development of people's mediation needs support from the state. We take it for granted that people's mediation has political tendency. However, the overemphasis on its political attribute would hurt its legal attributes and the massiveness.

The autonomous advantage of the people's mediation is reduced. Autonomy mainly embodied in: the people's mediation is an autonomous action entirely based on parties' equal and voluntary negotiations to resolve their conflicts and disputes, and the mediator shall not, against the will of the parties, force to reach an agreement. …