When the court first mediates and then files a case, and there is a civil dispute with others, and both parties can't solve it by themselves, many people will think of this means of prosecution, and the prosecution also needs a certain process. Let's share with you why the court first mediates and then files a case.
Why did the court file a case after mediation 1 1? Why did the civil dispute court file a case after mediation?
Because pre-litigation mediation has the advantages of flexibility and simplicity, according to judicial practice and referring to the practices of local courts, pre-litigation mediation is only applicable to the following cases with high mediation rate:
(1) Family disputes, such as marriage, support, upbringing, adoption, guardianship marriage, inheritance, etc.
(2) Neighboring relations, such as homestead and real estate disputes.
(3) Small bid cases, such as small debt disputes and small contract disputes.
(4) Personal injury compensation, such as traffic accidents and industrial accidents, has a clear relationship between rights and obligations.
(5) Non-governmental lending disputes, such as non-governmental lending cases in which the amount of litigation subject matter is small and the rights and obligations between the parties are relatively clear.
(6) Other disputes with clear facts, simple legal relationship, clear rights and obligations and little controversy.
Second, what are the provisions of civil mediation?
People's Republic of China (PRC) Civil Procedure Law
Article 93 The principle of mediation
When trying a civil case, the people's court shall, on the basis of clear facts, distinguish right from wrong and conduct mediation on the basis of the principle of voluntary participation of the parties.
Article 94 Forms of mediation organizations
Mediation by the people's court may be presided over by a judge or a collegial panel, and it shall be conducted on the spot as far as possible. When conducting mediation, the people's court may notify the parties and witnesses to appear in court in a simple way.
Article 95 Assistance in mediation
The people's court may invite relevant units and individuals to assist in mediation. The invited units and individuals shall assist the people's court in mediation.
Article 96 Mediation agreement
An agreement reached through mediation must be voluntary by both parties and cannot be forced. The contents of the mediation agreement shall not violate the law.
Article 97 conciliation statement
If an agreement is reached through mediation, the people's court shall make a conciliation statement. The conciliation statement shall specify the claim, the facts of the case and the result of conciliation. The conciliation statement shall be signed by the judge and the clerk, stamped with the seal of the people's court and served on both parties. The conciliation statement has legal effect after being signed by both parties.
Article 98 A conciliation statement shall be made.
If an agreement is reached through mediation in the following cases, the people's court may not make a conciliation statement:
(1) Mediation and reconciliation of divorce cases;
(2) Mediation and maintenance of adoption cases;
(3) Cases that can be executed immediately;
(four) other cases that do not need to make a conciliation statement. An agreement that does not require the preparation of a conciliation statement shall be recorded in a written record, which shall have legal effect after being signed or sealed by both parties, judges and court clerks.
Article 99 Mediation fails.
Before the conciliation statement is served, if the conciliation fails to reach an agreement or one party reneges, the people's court shall make a timely judgment.
To sum up, the legal system does not stipulate that all civil disputes must be mediated before they can be filed. In fact, most civil disputes are filed first, and mediation is generally after the court debate. Mediation before litigation or mediation in litigation activities is not mandatory.
Why did the court mediate before filing a case? What is the process of filing a case for mediation?
The mediation procedure is initiated according to the application of the parties, and the specific process is as follows:
1, application. For cases that meet the conditions for filing, the filing judge shall clearly inform the plaintiff that he can apply for filing for mediation. If the parties apply for mediation, the plaintiff shall fill in an application for mediation.
2. Mediation. Those who enter the mediation procedure shall promptly inform the defendant and solicit his opinions, and inform the mediator's name, the time limit for proposing mediation and applying for withdrawal and other relevant litigation rights and obligations according to law.
3. Make a conciliation statement. In the case of reaching a settlement agreement or mediation agreement, a mediation agreement shall be made and served according to law, and the parties concerned shall be informed of the relevant rights and obligations such as applying for execution. If no agreement can be reached within the prescribed time limit, the original defendant shall be informed not to file a case for mediation, and the case shall be transferred to the court of first instance in time.
In principle, the mediation work should be carried out after the case is filed. If it is really necessary to extend the time limit for filing a case for mediation, it may be extended appropriately with the consent of both parties and the approval of the president.
Significance of filing a case for mediation
1, which is conducive to fully expressing the wishes of the parties and is the performance of maximizing the freedom of the parties. Mediation system is the guarantee of freedom of will in litigation system. It is more flexible and humanized than the judgment procedure. It allows the parties to speak freely, express, supplement and change their ideas in time, and solve problems through consultation. The opinions expressed by the parties are more reasonable, more practical and more conducive to solving contradictions without psychological pressure and negative emotional interference.
2. The procedure is simple and the way is flexible, which is conducive to quickly solving contradictions and saving judicial resources. Litigation is divided into ordinary procedure and summary procedure, but in fact, both ordinary procedure and summary procedure have to go through pre-trial preparation, court investigation, court debate, final statement and other links. Ordinary procedures need a more nuanced understanding of case investigation and a more comprehensive and accurate evidence collection.
If a trial is difficult to solve, it needs to be held several times, and the number of judges is also relatively large. Therefore, when a lawsuit goes on, both the parties and the judge are very tired. In contrast, the mediation procedure is flexible, which can solve disputes quickly, simply and economically, reduce the litigation burden of the parties, reduce the litigation cost, and realize the organic unity of the legal effect and social effect of handling cases.
3. The parties reach a win-win situation in mediation. Mediation reduces the antagonism of litigation procedures, advocates mutual understanding, mutual accommodation and friendly cooperation between the two sides, and allows the parties to discuss the most appropriate solution, which is conducive to safeguarding the long-term interests and friendly relations between the two sides in solving civil disputes.
4. Avoid implementation difficulties and realize the organic unity of mediation and implementation. No matter how reasonable the judgment is, if it is not accepted by the parties, it will be difficult in the final implementation stage. It may even become a dead letter because of the resistance and avoidance of one party, which obviously violates the original intention of legal construction and hinders the formation of a society ruled by law. Therefore, it is necessary for the judge to seize all possible mediation opportunities and mediate the case in time in order to obtain a mutually acceptable result.
Why did the court file a case after mediation? 1. What is the mediation process for filing a case?
1, the beginning of mediation Article 2 of the Provisions on Civil Mediation stipulates that the people's court shall mediate civil cases that can be settled through mediation. However, the people's court will not mediate in cases where special procedures, supervision procedures, public notice procedures, bankruptcy and debt repayment procedures are applicable, marriage and identity confirmation cases, and other civil cases that cannot be mediated according to the nature of the cases.
According to the provisions of the Civil Procedure Law, court mediation can be conducted at all stages and levels of litigation. Specifically, the court can mediate after the case is accepted, before the trial, during the trial, in the second trial and even in the retrial. According to the Civil Mediation Regulations, mediation can be conducted after the expiration of the defense period and before the judgment is made. With the consent of the parties, the court may conduct mediation before the expiration of the defense period.
Mediation in the trial usually takes place after the court debate. According to judicial practice, mediation can be conducted in court, or another date can be set after an adjournment. Generally, the parties apply for mediation, and the court can also make suggestions on its own initiative and start mediation with the consent of the parties.
2. The mediation of the mediation court is conducted under the auspices of the judge. Mediation can be presided over by the collegial panel or by the judges in the collegial panel; Mediation can be conducted in the court or at the place where the parties are located. The court may invite relevant units and individuals to assist in mediation.
The invited units and individuals shall assist the people's court in mediation. The relevant units and individuals mentioned here mainly refer to the units where the parties are located or the units that have some knowledge of the facts of the case, as well as the relatives and friends of the parties. They will assist in mediation, which will help to ease the tense atmosphere of litigation, relieve some doubts of the parties and help to form a mediation agreement.
Court mediation should be carried out with the participation of the parties, and in principle, it should take the form of face to face. According to the provisions of civil mediation, the court can also mediate the parties separately as needed. The parties may participate in mediation in person or entrust an agent ad litem to mediate on their behalf.
If a party without capacity for litigation conducts mediation, it shall be mediated by its legal representative. In principle, divorce cases should be mediated by the parties themselves. If it is really difficult for the parties to participate in mediation in person, they shall issue written opinions on the issue of separation and non-separation.
3. Mediation ends because the parties refuse to continue mediation or both parties reach an agreement. If no mediation agreement is reached and the parties refuse to continue mediation, the people's court shall continue the trial and make a judgment in time; If an agreement is reached through mediation, both parties shall be required to sign the mediation agreement and decide whether to make a mediation document according to the situation.
Second, the benefits of filing conditions
1, which is beneficial to the diversion of complex cases.
Judging from the characteristics of cases accepted by the people's courts at this stage, it is necessary to divide the complexity and simplicity of cases. With the profound changes in the economic system and social structure, the pattern of interests has been profoundly adjusted, and the ideological concepts have changed profoundly, which is manifested in the emergence of many new situations and new problems in China's economic development, and a large number of contradictions and disputes have flocked to the courts. The number of cases accepted by the people's courts has increased substantially year by year.
Taking civil and commercial cases as an example, in 2007, the court in Longan District of Anyang accepted 658 civil and commercial cases, and in 2008, * * * accepted 892 civil and commercial cases, an increase of 35.6% over the previous year; In 2009, new civil and commercial cases were accepted 1 154, nearly double the previous year. Filing a case for mediation is conducive to resolving some simple contradictions and disputes in time, and judges will have more energy to deal with more complicated cases, thus improving the quality of handling cases.
2, is conducive to reducing the litigation burden of the parties.
If mediation is implemented, when it is delivered to the filing court, the parties agree to mediation and even agree to perform their obligations immediately. In this case, the litigation procedure can be simplified and mediation can be conducted directly, and there is no need to take both parties to court. This can not only solve disputes in time, but also make the court avoid duplication of work, reduce litigation costs and save judicial resources. In the practice of filing a case, quite a few litigants expressed surprise and doubt about the complicated procedure and long trial period.
Some people have to pay high lawyer fees and simply let lawyers do it for them. Among the civil and commercial cases accepted by grass-roots courts, about 50% are divorce, traffic accident compensation, loan and other cases with relatively clear responsibilities and little controversy. If you do a good job of filing a case for mediation, you can efficiently solve simple disputes at this stage.
3. It is conducive to resolving barriers and avoiding the escalation of contradictions among all parties.
Mediation by filing a case simplifies the tedious litigation process. The judge can explain the law to the parties at the first time, listen patiently to the statements of the parties, understand the ideological trends of both sides, and communicate in time according to the focus of the dispute between the two sides, eliminate misunderstandings and resolve barriers, so as to achieve the purpose of resolving disputes.
In addition, the parties have not "torn their faces" because the mediation document for filing a case has not yet been delivered to the litigation documents for filing a case; Moreover, there is no trial procedure, and the atmosphere is much looser in form than that during trial mediation. This will relieve the pressure of the parties, enhance the sense of closeness between the court and the parties, and promote the smooth completion of mediation.
4. It is conducive to curbing the high withdrawal rate and safeguarding the rights and interests of the parties.
According to the data, in recent years, the withdrawal rate of cases in grass-roots courts has remained high. In some cases, the lawsuit was dropped because it was difficult to serve. In today's society, the population is very mobile, and the problem of difficult delivery is becoming more and more prominent, which hinders the smooth progress of litigation procedures. In some cases, because the subject matter is not big, the parties are unwilling to pay the announcement service fee after the mailing fails, and the cases are stranded in the filing court;
Some parties choose to withdraw the lawsuit voluntarily, and the acceptance fee is halved according to the provisions of the legal fee charging method, resulting in the parties not only failing to solve the problem, but also losing half of the legal fees. In addition, the defendant is away from home for a long time, which makes it very difficult to deliver, and the parties do not actively assist, which makes the trial time limit very critical, and even if individual cases are postponed, they exceed the trial time limit; The judge mobilized the parties to withdraw the lawsuit and then re-prosecute.
In fact, filing a case for mediation means that the people's court mediates some cases first, and mediation is not a lawsuit. Its process is also very simple, of course, there is also a need to charge legal fees.