Keywords: establish and improve the dispute settlement mechanism
In recent years, with the rapid development of China's social economy, the deepening of economic system reform and the constant adjustment of social interest pattern, social contradictions and disputes are at a high incidence, showing the characteristics of diversified dispute subjects, complicated interest demands and diversified dispute types, which poses new challenges to the existing social contradictions and disputes resolution mechanism. In view of the diversified development trend of social contradictions and disputes, we should speed up the construction and improvement of diversified dispute resolution mechanisms, integrate various social resources such as people's mediation, administrative mediation and judicial mediation, and comprehensively use various ways and means such as mediation, arbitration and litigation to form an effective conflict resolution system with complementary functions and procedural cohesion, so as to provide social subjects and parties to disputes with alternative dispute resolution methods that meet their interests and preferences. So as to resolve conflicts and disputes in time and effectively and maintain social stability, which is an important subject to be studied and solved in building a harmonious socialist society. This paper will discuss and analyze the connotation, practical significance, basic ideas and specific measures of constructing diversified dispute resolution mechanism.
I. Overview of diversified dispute resolution mechanism.
Diversified dispute resolution mechanism is relative to the traditional "unified" way to solve contradictions. To put it simply, due to the diversity of subjects, types and demands of current contradictions and disputes, the ideas, methods, measures and ways to solve contradictions and disputes should also be diversified. Diversified dispute resolution mechanism means that in a society, litigation and non-litigation dispute resolution methods have their own specific functions and characteristics, forming a complementary procedural system and a dynamic operation adjustment system to meet the diverse needs of social subjects. Diversified dispute resolution mechanisms can be divided into two categories: one is litigation and the other is non-litigation, that is, ADR. ADR is the abbreviation of English Alternative Dispute Resolution, which means "alternative (or selective) dispute resolution". Initially, it refers to all kinds of non-litigation dispute resolution methods developed gradually in the 20th century, and now it has been extended to the general name of non-litigation dispute resolution procedures or mechanisms that are common in all countries of the world and are outside the litigation system. At present, the alternative dispute resolution methods widely used in judicial practice in various countries without formal trial procedures mainly include arbitration, mediation, negotiation, case evaluation, mini-trial, early neutral evaluation, and settlement meeting presided over by judges. This concept can be translated as "alternative dispute resolution" literally, and "out-of-court dispute resolution" or "non-litigation dispute resolution procedure" or "out-of-court dispute resolution" in essence. [1] Contemporary international comparative jurists summarize the same-sex characteristics of ADR as the following basic elements: first, the informality of the procedure (simplicity and flexibility); Second, the non-legalization of dispute settlement standards. That is, there is no need to strictly apply the provisions of substantive law, and there can be more flexible application and trading space within the framework of the basic principles stipulated by law; Thirdly, from the perspective of the subject of dispute resolution, ADR has non-professional characteristics, which can make dispute resolution break away from the monopoly of professional lawyers; Fourth, the form is folk or diversified, among which folk ADR accounts for the vast majority; Fifth, judging from the relationship between the dispute solver and the parties, the ADR structure including arbitration is horizontal or equal. The neutral third party is not a judge (judge) exercising judicial power, and the disposition right and agreement of the parties are more decisive than litigation, so it is called more thorough neo-chauvinism; Sixth, the process and result of dispute settlement are mutually beneficial and peaceful (non-confrontational). [2] In this sense, China's people's mediation and other non-litigation dispute resolution methods meet these basic characteristics and can be included in the scope of ADR, although they all maintain their own particularity. At present, China has initially formed a set of diversified dispute resolution mechanism with China characteristics, which is embodied in the cooperation and convergence with litigation as the core and various non-litigation methods as the supplement, and comprehensively uses political, economic, legal, administrative and educational means to coordinate and handle social contradictions and disputes. [3] China's diversified dispute resolution mechanism can also be divided into litigation and non-litigation modes. The litigation method is court judgment, and the non-litigation methods include mediation (people's mediation, judicial mediation, administrative mediation), party reconciliation, administrative ruling, administrative reconsideration, arbitration, letters and visits, etc.
Second, the practical significance of constructing a diversified dispute resolution mechanism linked to grand mediation.
The Sixth Plenary Session of the 16th CPC Central Committee put forward the strategic task of building a harmonious socialist society. A harmonious society is not a society without contradictions, but a society in which social contradictions and disputes are properly resolved in time, people's rights and interests are effectively safeguarded in time, and social fairness and justice are vigorously promoted in time. In order to properly resolve social contradictions and disputes in time, it is necessary to establish a scientific and effective mechanism for resolving contradictions and disputes. At present, due to the different nature, form and degree of confrontation of conflicts, the means and ways to resolve disputes are inevitably diverse. Establishing and perfecting diversified dispute resolution mechanism is of great significance for maintaining social stability and building a harmonious society.
First, it is conducive to building a harmonious and orderly social structure. Development is the first priority and stability is the first responsibility. To realize the new pattern, new level and new development of various undertakings, we must have a stable and harmonious social environment. At present and in the future, contradictions among the people are still prominent, criminal crimes are high, and there are still many factors affecting social stability. Especially with the profound changes in economic system, social structure, interest pattern and ideas, some contradictions and disputes cross regions, industries and departments, which are sudden and difficult to find and control. Single channel to solve social contradictions and disputes has not adapted to the needs of social development. Judicial intervention in social contradictions and disputes is a very important means, but it is not the best means for some contradictions and disputes, because the function of justice is to judge disputes and does not have the function of directly allocating social resources. Many contradictions and disputes in interest adjustment need comprehensive adjustment by administrative and economic means, and it is not easy to enter the judicial process. Meanwhile, judicial resources are limited. If the masses encounter disputes and take the wooden bridge of litigation, it will inevitably lead to some contradictions that could have been resolved through peaceful means becoming more antagonistic, and ultimately affect social harmony. Actively explore the establishment of a diversified dispute resolution mechanism with effective connection and coordinated operation of people's mediation, judicial mediation and administrative mediation, comprehensively use legal, policy, economic and administrative means, and carry out in-depth conflict prevention and resolution by means of education, consultation and guidance to improve mediation efficiency and effectively promote social harmony and stability.
Second, it is in line with the ruling goal of safeguarding people's livelihood and putting people's interests first. People's courts use limited trial resources to solve major and difficult social contradictions and disputes, and advocate diversified solutions before and after litigation for general civil disputes, which is an effective way to relieve trial pressure and successfully resolve contradictions. Practice has proved that people's mediation and administrative mediation are important foundations of judicial trial. Resolving disputes through consultation can make the parties' autonomy of will and the right of disposition more respected, better safeguard family warmth, neighborhood comity and transaction integrity, and enhance social tolerance and social responsibility. People's mediation and administrative mediation have the special functions of enhancing cohesion, inheriting moral values, and coordinating law with public order and good customs, which are irreplaceable by court decisions. For the parties, it is not a sign of strong legal awareness to go to court if something happens; For the court, it is not that the more cases accepted, the more achievements will be reflected. Give full play to the advantages of multiple mediation to resolve social contradictions and disputes, and resolve a large number of contradictions and disputes outside the litigation, fully meeting the new demands and expectations of the people and meeting the specific requirements of putting people's interests first.
Third, it is conducive to promoting the continuous development of peace-building activities. The new situation and tasks require all relevant departments to strengthen cooperation, give full play to the role of social control, build a social contradiction resolution system with reasonable resource allocation and efficient mechanism operation, and provide corresponding solutions for different types of social contradictions. Constantly innovating mediation concepts, mediation methods and mediation methods, promoting the improvement of diversified dispute resolution mechanism with the core content of "unified leadership of party committees, linkage of relevant departments, active leadership of courts, smooth appeal channels, sharing of information resources, and benefit of grassroots people", preventing, diverting and resolving social contradictions from the source, and deepening the comprehensive management of social security are conducive to timely eliminating various unstable and disharmonious factors affecting social development. In particular, resolving various contradictions and disputes through consultation and reconciliation is conducive to coordinating and unifying the interests of all parties, strengthening unity and cooperation, rallying people's hearts for development and career, and creating a good environment for economic and social development.
Third, the basic idea of giving full play to the role of diversified dispute resolution mechanism connected with great mediation.
Building a harmonious socialist society is a continuous process of constantly solving social contradictions. In a harmonious society and a mature society ruled by law, the state should provide corresponding solutions for different types of social disputes. Each dispute resolution method should occupy its own position, perform its duties, complement each other and coordinate with each other. Every specific contradiction and dispute should have different channels of expression and solutions. The establishment of diversified dispute resolution mechanism is to clarify the position and role of various dispute resolution methods in the social contradiction dispute resolution system, and form a social contradiction dispute resolution model that not only gives full play to the characteristics and advantages of various dispute resolution methods, but also meets the diverse needs of social subjects, and is coordinated and complementary. To play the role of multiple dispute resolution mechanism, the basis lies in establishing and strengthening judicial mediation, administrative mediation and people's mediation, as well as the integration of litigation and mediation. Improve the pluralistic dispute resolution mechanism based on people's mediation, administrative mediation as the center, litigation mediation as the leading factor and judicial trial as the guarantee, carry forward civil mediation, give play to the role of administrative mediation, turn negative factors into positive factors throughout the court mediation, and maximize the mediation effect.
(1) Strengthen people's mediation and lay a solid foundation.
People's mediation is the basis and the first line of defense of multidimensional dispute resolution mechanism. We should vigorously strengthen people's mediation and give play to its basic role in the system of mediation of contradictions and disputes. We should vigorously expand the field of people's mediation, actively adapt to the new tasks and requirements of economic and social development, and actively participate in the mediation of social hot and difficult disputes such as land contracting, labor disputes, doctor-patient disputes, land acquisition and demolition while continuing to do a good job in mediation of common and frequent disputes such as marriage, family, neighborhood, homestead, production and operation, and damage compensation. It is necessary to strengthen the function of people's mediation in preventing contradictions and disputes, legal publicity and education, strive to improve the quality of mediation, and strengthen the construction of mediation organization network. All units, communities (towns) and administrative villages have established people's mediation organizations, equipped with people's mediators, and absorbed some respected and prestigious people in time to optimize the organizational structure of polls. Grass-roots courts should set up special pre-litigation mediation institutions, equipped with judges with rich mediation experience and high level of trial theory, and at the same time hire street judicial officers with rich mediation experience and judicial assistants recommended by street communities as special mediators. Judicial liaison officers should also be hired from judicial directors and judicial assistants who play a good role to assist the court in mediating cases, or be entrusted by the court to independently preside over cases accepted by the court. It is necessary to increase investment in people's mediation work, implement funds for people's mediation work, improve the treatment of people's mediators, link economic subsidies with performance appraisal, and maximize the enthusiasm of people's mediators. The people's courts should give full play to the leading role in the "four-in-one" mediation, closely cooperate with the judicial administrative organs, and combine with specific cases to strengthen the professional guidance and training for people's mediators through systematic lectures, special lectures, answering questions and assisting mediation, improve their professional quality, enhance their ability to resolve social contradictions and disputes, and ensure that people's mediators can play their role as early as possible to resolve and control social contradictions.
(2) Strengthen administrative mediation and allocate relief resources.
It is necessary to strengthen the responsibility of administrative organs to resolve disputes. At present, a considerable number of social contradictions and disputes are administrative disputes, and administrative organs are also responsible for solving disputes such as administrative reconsideration, administrative mediation and administrative adjudication. Administrative organs have the unique advantages of professionalism, comprehensiveness and efficiency in resolving disputes. At the same time, administrative organs have administrative discretion and social resources that other dispute resolution subjects do not have. In the process of dispute resolution, disputes can be effectively resolved through different resource allocation. Dispute settlement is closely related to right relief. Relief means that when there are obstacles to the realization of rights, it is necessary to provide them with a kind of relief and help. Relief includes public relief, social relief and private relief. As far as public relief and social relief are concerned, public relief by government departments and social relief by trade associations are very important, but there is a gap in reality, and there is still a lot of room for practical exploration and reform and development. We must renew our ideas, establish the concept of diversified dispute resolution, set up special working institutions, formulate and improve dispute resolution rules and job responsibilities, and handle related disputes in a timely manner. Actively advocate the administrative mediation values of "harmony is the most important", cooperation and autonomy, guide the peaceful settlement of disputes, reduce the degree of dispute confrontation, avoid the escalation of disputes and increase social harmony.
(3) establish a joint system and do a good job in litigation docking.
Establish "three systems" and build an integrated platform for judicial mediation, people's mediation and administrative mediation. The first is to establish a joint meeting system. It is necessary to establish a mediation joint meeting system, with the participation of courts, judicial administrative organs or administrative organs, organizing specially invited mediators' representatives, civil mediation instructors and other relevant personnel to attend, holding regular meetings, informing each other of the occurrence and settlement of disputes, and exchanging and studying ways to solve disputes. The second is to establish an evaluation management system. All grassroots judicial offices should take strengthening people's mediation as an important task, earnestly strengthen the assessment management of people's mediation daily work, standardize people's mediation business ledger, mediation documents and work files, implement various rules and regulations, organize regular assessment and appraisal, ensure the standardized operation of people's mediation work according to law, promote the healthy development of people's mediation work with scientific and effective management, stimulate the enthusiasm of people's mediators, and strive to resolve contradictions at the grassroots level and in the bud. The third is to establish an information sharing system. The court should establish a regular contact system with people's mediation organizations, arbitration institutions and administrative departments, and establish a mechanism of "resource sharing of adjudication cases" to give full play to the judicial functions of punishment, education, protection and prevention. The judicial administrative organ shall make a monthly statistical report on the number, types, progress and handling results of civil disputes mediated by people's mediation organizations, and send a copy to the court. The court shall form a monthly statistical report on the cases accepted by the people's mediation and the mediation agreement that is deemed invalid or changed or revoked due to legal reasons, and feed it back to the judicial administrative organ.
Fourth, specific measures to promote and improve the diversified dispute settlement mechanism.
It is a social system project that needs multi-party cooperation and continuous improvement to promote and improve diversified dispute resolution mechanisms, make them coordinate with each other and give full play to their respective roles. We should adhere to the leadership of Party committees and courts, strengthen contact and coordination, support and cooperate with each other, and strive to build a new pattern of diversified dispute resolution mechanisms.
First, adhere to the leadership of the party Committee and grasp the correct direction.
To promote and improve the diversified dispute settlement mechanism, we must adhere to the leadership of the Party, integrate various resources and advantages, and cooperate in many ways to form a joint force. It is necessary to incorporate the improvement of multiple dispute resolution mechanisms into the goal of comprehensive management of social security, adhere to and deepen the creation of peace, and establish a long-term working mechanism. It is necessary to intensify inspection and supervision, strengthen work guidance, scheduling and coordination between the people's courts and mediation organizations, and ensure that all work systems are complete, measures are specific, and results are remarkable. All comprehensive management departments actively prevent and resolve conflicts, especially deal with mass and unexpected incidents in advance, prevent contradictions from being handed over or extrapolated, and earnestly safeguard social stability. All relevant departments should deepen investigation and study, strengthen the analysis and judgment of social contradictions and disputes, and actively make suggestions to the party Committee and government around the diversified dispute resolution mechanism.
The second is to smooth the channels of appeal and unite the efforts of many parties.
Smooth appeal channels are the premise of promoting and perfecting diversified dispute resolution methods. Fully mobilize the resources of member units and all aspects of society, play a role in the social control system, and form a diversified social contradiction and dispute resolution mechanism with reasonable configuration and efficient operation.
All administrative organs and grass-roots organizations should, according to their position and responsibilities in the multi-dimensional dispute resolution mechanism, insist on not being offside, unauthorized, evasive and evasive, give full play to their active and efficient roles, and timely and effectively resolve contradictions and disputes.
Courts and their dispatched courts should further improve the mechanism of preliminary mediation and entrusted mediation in simple civil cases, support people's mediation organizations to participate in pre-litigation mediation, and incorporate people's mediation into litigation channels. In the trial of civil cases involving people's mediation agreements, it is necessary to confirm the legal effect of people's mediation agreements according to law, improve the credibility of people's mediation agreements, and safeguard the seriousness of people's mediation work. Efforts should be made to explore new ways to guide the work of people's mediation committees and industry mediation associations, strengthen communication and coordination with judicial administrative departments and administrative organs, and gradually establish and improve an effective mechanism for coordinating people's mediation, administrative mediation and judicial mediation.
The judicial administrative organ shall, in accordance with the principle of "combining prevention with regulation, giving priority to prevention, comprehensively using various means and coordinating operations", perform its statutory duties according to law and guide the people's mediation work; We should persist in going deep into the grass roots and the masses, seriously study and solve the new situations and new problems faced by people's mediation work under the new situation, further establish and improve the prevention systems of civil air defense, ground defense, military defense and secondary defense, do a good job in predicting and preventing civil disputes, increase mediation efforts, make adjustments when conditions permit, digest contradictions and disputes at the grass roots and nip them in the bud, and minimize "litigation". Efforts should be made to eliminate blind spots and dead ends in people's mediation work, adhere to the principle of proceeding from reality, treat people differently according to the different situations of people's mediation organizations in different regions, industries and levels, implement classified guidance, and continuously improve the scientificity, initiative and predictability of work.
Give full play to the role of people's jurors and lawyers, and tap diversified dispute resolution resources. People's jurors come from the grassroots level, are familiar with the court trial work, social conditions and people's feelings, are close to the people, are widely representative, and mediation is easily accepted by the parties. It is necessary to mobilize the enthusiasm of people's jurors to participate in mediation and ensure a win-win situation for both legal and social effects. Give full play to the advantages of lawyers' professional knowledge and experience in handling social disputes, actively explore the incentive mechanism for lawyers to actively participate in the mediation of contradictions and disputes, and urge the parties to resolve them independently within the legal framework.
Trade unions, women's federations and other organizations should not only take the initiative to solve labor disputes and marriage and family disputes according to their functions and powers, but also actively assist the courts in doing a good job in counseling. Labor, land, environmental protection, health, industry and commerce and other administrative law enforcement departments, while performing the function of mediating disputes, should provide professional reference opinions for the court to hear related cases and create favorable conditions for the harmonious resolution of contradictions.
The third is to enhance judicial authority and improve judicial level.
Justice is the most standardized and authoritative means of dispute resolution, and judicial trial is the last pass of dispute resolution. As the most important force in dispute resolution, people's courts should fully implement the principle of "just justice and serving the people wholeheartedly" through fair, efficient and authoritative judicial practice, adhere to the concept of "people-oriented", deepen reform and innovation, optimize judicial power, strengthen judicial capacity building, actively carry out judicial assistance, and ensure timely filing and fair judgment. We should consciously practice the theme of justice and efficiency, implement the judicial openness system, improve the supervision and restriction mechanism, improve the quality and efficiency of trials, maximize the advantages of judicial resources, minimize the litigation burden of parties, and achieve judicial justice at the lowest cost. In the broad scope of diversified dispute resolution mechanism, we should adhere to the civil judicial principle of "mediation first, combining mediation with judgment", constantly strengthen the concept of pluralistic harmony, and make full use of various "soft" judicial means such as mediation, reconciliation and coordination to resolve contradictions and disputes before, during and after litigation, so as to balance conflicts of interest and achieve the judicial purpose of closing the case and stopping disputes.
The fourth is to increase publicity and create a good environment.
To improve the diversified dispute resolution mechanism, we must mobilize the enthusiasm and initiative of all walks of life and the broad masses, and strive to form a vivid situation in which everyone is responsible, everyone participates and everyone enjoys. All relevant departments should take the maintenance of social order and the protection of the rights and interests of the masses as the starting point and the end result, carry forward the fine tradition of "harmony is the most important", actively guide the society to change the concept of "solving disputes is litigation", and comprehensively use various means such as law, policy, economy, administration, education, consultation and persuasion to release the masses' emotions, straighten out social contradictions and prevent the phenomenon of "holding grudges" due to disputes. It is necessary to strengthen publicity, increase publicity, guidance and supervision of non-litigation dispute resolution methods such as polls and consultations, so that the masses can fully understand and consciously identify with diversified dispute resolution mechanisms and actively choose efficient, convenient and low-cost conflict resolution and dispute resolution methods.