Liu Xue, Professor and Doctoral Supervisor of Wuhan University Law School,
20 10 On August 28th, the 16th meeting of the Standing Committee of the 11th NPC deliberated and passed the People's Voting Law of China (hereinafter referred to as the People's Mediation Law), which came into effect on August 28th, 201. The promulgation and implementation of this law will play a more important role in solving civil disputes in a timely, efficient and proper manner and promoting the construction of a harmonious socialist society.
First, the people's mediation system has achieved an important transformation of "legalization"
China has a legal and cultural tradition of "harmony is precious", "no litigation" and "being tired of litigation", and settling disputes through mediation is an important embodiment of this tradition. According to the different nature of mediators, mediation can be roughly divided into official mediation and folk mediation. Among them, people's mediation is the most widely distributed and effective mediation method among many types of civil mediation. It is a non-litigation dispute resolution method with China characteristics to resolve contradictions and eliminate disputes. It is considered as the "first line of defense" to solve disputes and maintain social stability. It also enjoys a high reputation abroad and is known as the "oriental experience" to effectively resolve social contradictions. However, from the normative basis, for a long time, this extremely important dispute resolution method is mainly based on administrative regulations, rules, judicial interpretations or policy normative documents, and there is no narrow "law" to specifically regulate it.
Specifically, although as early as 1954, the Central People's Government formulated the General Rules for the Temporary Organization of the People's Mediation Committee as the main basis for guiding the people's mediation work after the founding of New China, and in 1989, the State Council re-enacted the Organization Regulations of the People's Mediation Committee, these two laws and regulations only stipulated the organizational procedures of the people's mediation, but did not comprehensively stipulate the people's mediation system. In order to better regulate people's mediation activities, the Ministry of Justice issued "Several Provisions on People's Mediation" on September 26, 2002, and the Supreme People's Court issued "Several Provisions on the Trial of Civil Cases Involving People's Mediation Agreements" on September 6, 2002. The Supreme People's Court and the Ministry of Justice issued Opinions on Further Strengthening People's Mediation in the New Period and Opinions on Further Strengthening People's Mediation and Effectively Maintaining Social Stability in June 5438+ 10 and February 65438+March 2004 respectively. Although these normative documents have played an important guiding role in giving play to the function of people's mediation, they have the following important defects: First, the contents are incomplete, and the provisions of relevant laws, regulations, judicial interpretations or other normative documents are not coordinated enough or even contradictory; Third, the development of economy and society puts forward new requirements for the people's mediation system, and the original mediation system needs to be further improved through legislation in many aspects such as organizational norms, procedural norms, and agreement effectiveness. Therefore, the promulgation of the People's Mediation Law means that China's people's mediation system has achieved an important transformation of "legalization", indicating that the state has stipulated the nature, tasks, principles, organizational forms, selection of mediators, mediation procedures and effectiveness of people's mediation in the form of legislation, thus further legalizing and standardizing the people's mediation work.
Two, the people's mediation and other dispute resolution methods of convergence and cooperation mechanism is more perfect.
During the formulation of the People's Mediation Law, the relationship and complementary role of different dispute resolution methods were fully considered, and the practical experience of various dispute resolution methods in solving social contradictions was summarized. On the basis of previous judicial interpretations and regulations, the linkage and cooperation mechanism between people's mediation and other dispute settlement methods is more perfect.
(A) in the choice of dispute resolution, the principle of giving priority to people's mediation has been implemented.
People's mediation is an effective means to resolve contradictions and disputes through non-governmental channels, and it is the "first line of defense" to maintain social stability in the new period. It has the advantages of flexibility, quickness and low cost, and should try to guide the parties to resolve disputes through people's mediation. Article 18 of the People's Mediation Law embodies this requirement and implements the principle of giving priority to people's mediation. It stipulates that grass-roots people's courts and public security organs may inform the parties to apply to the people's mediation committee for mediation before accepting disputes suitable for settlement through people's mediation. Accordingly, before the public security organ files a case or makes an administrative ruling, the court can guide the parties to resolve disputes through people's mediation from the perspective of safeguarding the rights and interests of the parties, considering that the preferred dispute resolution method in some cases is not litigation or administrative procedures.
(b) Emphasize the failure of mediation and other dispute settlement mechanisms.
For various reasons, mediation may not be successful. Article 26 of the old friend's poll solution stipulates that the people's mediators should terminate the mediation if the mediation fails, and inform the parties that they can defend their rights through arbitration, administration and justice in accordance with the provisions of relevant laws and regulations.
(3) The judicial confirmation mechanism of mediation agreement is clarified.
Because the people's mediation agreement has no enforcement effect, once the obligor refuses to perform his obligations, he often needs to re-enter the proceedings. This not only increases the litigation burden of the parties, but also wastes a lot of judicial resources and increases the work pressure of the court. In order to solve this problem, some local courts have explored the reform of judicial confirmation of people's mediation agreement. For example, in March 2007, the two-level courts in Dingxi City, Gansu Province carried out a pilot reform. On July 24, 2009, the Supreme People's Court issued the Opinions on Establishing and Perfecting the Conflict and Dispute Resolution Mechanism Connecting Litigation and Non-litigation, which recognized the judicial confirmation procedure. On this basis, Article 33 of the People's Mediation Law clearly stipulates this mechanism by way of legislation for the first time: after a mediation agreement is reached through mediation by the People's Mediation Committee, both parties may, if necessary, apply to the people's court for judicial confirmation within 30 days from the effective date of the mediation agreement, and the people's court shall promptly review the mediation agreement and confirm its validity according to law; If the mediation agreement is confirmed to be valid, the obligee may apply to the people's court for compulsory execution if the other party refuses to perform it or fails to perform it completely; If the mediation agreement is confirmed invalid, the parties may change the original mediation agreement or reach a new mediation agreement through people's mediation, or bring a lawsuit to the people's court.
The People's Mediation Law clearly stipulates the judicial confirmation system, which is an important institutional innovation in the organic connection between people's mediation work and judicial trial activities. On the one hand, the judicial confirmation system reflects the strong support for people's mediation, greatly strengthens the effectiveness of people's mediation agreements, and maintains and enhances the credibility of people's mediation. Judicial power supporting people's mediation is an important procedural mechanism. On the other hand, it provides a simple, fast, efficient, thorough, harmonious and economical procedural mechanism for the parties, which reduces the pressure of court proceedings without requiring the parties to file a lawsuit, but does not deprive or weaken the basic rights of the parties to obtain judicial relief. The establishment of judicial confirmation system actually finds a balance between strengthening the legal effect of people's mediation agreement and protecting the parties' right to judicial relief, which embodies the scientificity, rationality and operability of program design and is of great significance for fully and efficiently protecting the legitimate rights and interests of the parties.
Third, further standardize and improve the people's mediation system from the aspects of organizational form, mediation subject and mediation procedure.
Compared with 1989, the people's mediation law has made more perfect provisions on the organizational form of people's mediation, the selection of people's mediators, mediation procedures and many other aspects, mainly in the following aspects: First, it has further adhered to and consolidated the nature and characteristics of the people's mediation Committee and its mediation activities, such as mass, folk and autonomy. This attribute is the basis of people's mediation work, which distinguishes it from the ruling of administrative departments and the trial of judicial organs, realizes the self-management and self-service of the people, and makes it have its own distinctive characteristics and advantages. The People's Mediation Law further upholds and consolidates this attribute, thus establishing and realizing the diversification of dispute settlement mechanism from the legislative level. Second, the establishment of people's mediation committees is more reasonable and can better meet the needs of practice. The People's Mediation Law not only further regulates the establishment, composition and selection procedures of villagers' committees, residents' committees and people's mediation committees of enterprises and institutions, but also expands the scope of the establishment of people's mediation organizations, that is, it stipulates that towns, streets, social organizations or other organizations can set up people's mediation committees in accordance with the relevant provisions of this Law to mediate civil disputes, thus reserving institutional space for the establishment of various new people's mediation organizations, and meeting the development and needs of mediation practice to the utmost extent. The third is to further clarify the qualifications, selection methods, codes of conduct and safeguard measures of people's mediators. This will help to improve the overall quality of people's mediators and encourage them to actively participate in people's mediation. Fourth, the flexibility and convenience of people's mediation procedures have been more fully reflected. Based on the characteristics of folk and autonomy of people's mediation, the relevant provisions of mediation procedure fully respect the rights of the parties, highlighting the characteristics and advantages of informality, flexibility and convenience. The fifth is to further clarify and strengthen the guidance and safeguard measures for people's mediation work.