1. The causes of current social conflicts and disputes
my country's structural transformation from a planned economy to a market economy has promoted the rapid development of the economy and society, and also brought about ideological, economic, and political changes. Profound changes in the field have brought about fluctuations in people's thoughts and emotions and huge changes in the pattern of interests, and various social conflicts have entered a period of high incidence. The prominence of social conflicts involves both objective and subjective factors, economic factors, political factors, domestic factors and international factors. It is the result of the interaction of multiple factors.
No matter what kind of society or what era, subjective factors are the direct cause of social conflicts and disputes. For example, personal possessiveness of material and interests; personal extreme preferences for things; ever-changing unsatisfied needs of individuals; imbalance of social moral balance; not poverty but inequality; competitiveness; emotional likes and dislikes, etc. Objective factors are the root cause of social conflicts and disputes, such as unbalanced economic and social development; uneven social distribution; the disconnect between the changes in the old and new systems leading to conflicts of interest among subjects, etc.
(1) Unbalanced economic and social development
With the deepening of reform and opening up, people's living standards continue to improve as a whole. However, the development and development of regional advantages, potential advantages, central city advantages, etc. , leading to a growing gap between rich and poor between regions, between urban and rural areas, and between all walks of life. Many people do not look for reasons from both subjective and objective aspects, "not suffering from poverty but from inequality", which leads to psychological imbalance, imbalance and loss of control, and ultimately leads to conflicts and disputes.
(2) The contradiction between population resources and natural resources
China is a country with a large population and a large agricultural country. The agricultural population accounts for 70% of the total population. In terms of the possession of public goods such as social resources and social welfare, the urban population itself enjoys more favorable treatment than the rural population, and my country's population and family planning policies, fertility awareness, and urban-rural contradictions are also prominent. In terms of population ratio contradiction, at present, a couple in rural areas generally have more than two children, while urban couples only have one child, and a few urban couples are still unwilling to have children, resulting in an increasing proportion of urban and rural populations; at the same time, agricultural The comprehensive popularization of science and technology and the increasingly low exploitation potential of land and natural resources have led to the continued shrinking of farmers' per capita income, a large surplus of rural labor, and a sharp increase in interest conflicts centered on employment and income. Individuals, groups, industries, families, Conflicts between communities, urban and rural areas, and between regions have increased dramatically, and the nature of disputes has become increasingly complex.
(3) Transition between old and new systems, defects and out-of-control social control systems
Any system reform will trigger profound changes in thought, economy, system, politics and each other, especially This is due to the in-depth development of the current market economy, the emergence of multiple stakeholders and the coexistence of multiple economic ownerships. In addition, social integrity has not yet been established, the legal system is incomplete, the market order is not standardized enough, and various inherent disadvantages have been exposed one after another. Take the medical order, for example. On the one hand, the state spends a lot of manpower and financial resources to rectify the order. On the other hand, medical prices remain high. Various "hidden rules" involving the medical and health industry are repeatedly banned driven by interests, and doctor-patient disputes occur frequently.
2. Characteristics of current social conflicts and disputes
Judging from the overall situation of current social conflicts and disputes, the number is generally on the rise and has the following characteristics:
(1) Diversification of entities
As the new economic system and order break the old economic model and regional blockade, a competition mechanism is established and various stakeholders emerge. With the activities of various subjects, conflicts and disputes in the economic, political, and ideological fields are increasing day by day. It happens not only among citizens, but also between citizens, legal persons, unincorporated groups and organizations, and even between governments, cadres and the masses. Driven by economic development, the gradual deepening of reform, and the process of top-down legalization, conflicts and disputes at the grassroots level are increasing day by day. From the perspective of the subjects of disputes, the subjects of grassroots conflicts and disputes are developing in a diversified direction. Taking farmers as social subjects as an example, with the differentiation of classes and groups, farmers in the traditional definition are divided into agricultural workers, migrant workers, peasant intellectuals, individual workers and self-employed individuals, private business owners, township managers and rural managers. who.
(2) Complex content
Due to the imbalance and differences in individual economic interests, conflicts and disputes are replaced by "one cause and one effect" or "multiple causes and multiple effects"[③] . Looking at the handling of every conflict and dispute, we will find that the causes of various conflicts and disputes are diverse and intertwined. There are often historical factors, policy factors, economic interests factors, and improper handling methods. On the one hand, the masses demand rationality, but on the other hand they do not understand the policies of the party and the country. They demand too much and ignore the overall situation. Some are intertwined with public security, civil and criminal cases, some are intertwined with economic, administrative and political factors, and some are not only a social phenomenon but also an unstable factor, such as family planning, land acquisition and demolition, grassroots elections, etc. In the process of conflicts and disputes, many other unstable factors are also involved. The consequences are not related to the interests of one or a few people, but to the interests of many parties, which increases the complexity of current conflicts and disputes.
(3) Type diversification.
Under the conditions of market economy, the types of disputes increase. Cross-regional and cross-industry disputes, labor disputes, commodity management, credit investment disputes, corporate partnerships, subcontracting, auctions, mergers and bankruptcy disputes, land expropriation, allocation and transfer disputes, production safety disputes, marriage and property disputes, preferential care and relief disputes, alimony disputes There are constantly emerging and diverse types.
(4) Difficulties in Mediation
Due to the frequent occurrence of social conflicts and disputes with complex causes, the reasonable demands of the subject are often intertwined with the unreasonable and illegal expression of demands of a few people. The demands for economic interests and the protection of democratic rights are intertwined, making conflicts and disputes difficult to mediate. First, it is difficult to determine the nature of the dispute. Only with certain cultural, social, economic, political, legal and policy knowledge, and familiar with the policies and regulations between stages, can we correctly identify the content and nature of the dispute; second, the dispute is complex and involves a wide range of areas, and it is difficult for one department alone to be effective. Some disputes require coordination from multiple departments. In particular, the spontaneous behavior of the masses is used by people with ulterior motives to confuse right and wrong, which not only makes mediation difficult, but also accelerates the intensification and deterioration of conflicts and disputes, affects and threatens the production, life and work of the people, and can even easily lead to malignant incidents.
3. Current status of the conflict and dispute mediation mechanism
(1) From the perspective of institutions, personnel, funding, case handling mechanisms, investigations and practical work, the current establishment of the social conflict and dispute mediation mechanism Basically, it is based on the party's grassroots organization, with a leading group with the top leader taking overall responsibility as the leader, the leaders in charge as the specific responsible persons, and each department as the member unit. Each department has an office, and meetings are held at all levels and documents are issued. Supervise implementation and conduct quantitative assessment. On the surface, leadership, organization, personnel, supervision, and assessment are in place, but in reality little effect has been achieved. First, there is a shortage of manpower. Most of the staff from top to bottom are part-time, and not many people take the mediation of conflicts and disputes as their job, especially in grassroots institutions.
According to the survey, a considerable number of judicial offices, conflict resolution centers, political and legal offices, and comprehensive management offices are lined up in a long list, but in addition to the judicial auxiliary personnel working on the staff, most of them are part-time employees of the unit, or the elderly, weak, sick and disabled; Second, the work is not implemented in place. There are many meeting materials, documents, and inspection materials, but there are not many files that can actually close the case. If you compare the number of closed cases to the number of disputes in the jurisdiction, the gap is even wider. Third, there are no fewer intermediary organizations than grassroots organizations. Intermediary organizations such as law firms, arbitration institutions, legal aid centers, and legal service centers are basically established at or above the county level and carry out work regularly or upon invitation. Resources are not well integrated and synergy has not yet been formed, and there is an obvious disconnect between legal services and the mediation of social conflicts and disputes. Fourth, work funds are not guaranteed. Mediation of social conflicts and disputes is free except for the People's Court, in accordance with laws and regulations. But every time a dispute is mediated, there is no need to collect evidence or travel. It is rare to convene mediation in the office and get things settled. More often than not, disputes have not been successfully mediated for several years or more than ten years. Judicial administrative departments and other units do not have funds for people's mediation, so it is even more difficult to include it in the budget.
(2) From the perspective of the dilemma of conflict and dispute mediation, the first is the dilemma of litigation mediation. On the one hand, grassroots mediation organizations at all levels are part-time, but on the other hand, they cannot charge any fees according to regulations, and they have to work hard and pay travel expenses. Intermediary organizations are unprofitable and do not extend to the grassroots level. This has led to a large backlog of litigation and non-litigation cases in the People's Courts, while intermediary organizations have been ignored, and civil mediation has become increasingly weakened, or between grassroots mediation organizations and courts. Second, the limitations of non-litigation mediation. From the perspective of non-litigation dispute resolution capabilities, non-litigation mediation plays an important role in resolving ordinary disputes. The masses are increasingly inseparable from non-litigation mediation, but are unable to mediate major conflicts and disputes that plague the party and the government. The reason is that grassroots mediation organizations can only implement policies but cannot formulate them. More than 95% of the major conflicts and disputes that plague the party and the government are due to inconsistent policies or non-current policies. According to statistics from relevant departments, at the same time, non-litigation mediation is based on The principle of mutual understanding and accommodation between the two parties, based on negotiation and reconciliation, cannot achieve the unity of autonomy and administration, let alone be authoritative and final. Third, the mediation mechanism is out of touch. Although the litigation mediation mechanism, arbitration mechanism, administrative agency dispute settlement mechanism, petition system, etc. all constitute a diversified social conflict and dispute mediation system, the effectiveness of dispute resolution is limited due to unreasonable structural layout, segmentation, and inconsistent application basis. It is not high and inconsistent with the efficiency, autonomy, self-discipline, flexibility and other value goals pursued by modern society, especially when it comes to problems such as policy disconnection and out-of-control administrative capabilities. Therefore, establishing and improving a scientific mediation mechanism for social conflicts and disputes is an urgent task we face.
4. Establish and improve the conflict and dispute mediation mechanism.
Wherever there is society, there will be disputes, and disputes are inevitable. For a society, what is important is not how to eliminate or suppress disputes, but how to establish an effective conflict and dispute resolution mechanism, so as to eliminate the disadvantages and retain the advantages, reduce the risks and harm that disputes bring to society, and minimize Cost of dispute resolution to achieve the best results of dispute resolution.
To resolve social conflicts and disputes, understanding the social background of conflicts and disputes and being familiar with laws, regulations and policies are the basis. It mainly solves the problems of how to identify the nature of conflicts and disputes and how to choose the entry point; establish a complete mediation of social conflicts and disputes The mechanism is a key part, and it solves the problem of how to do things with whom. At present, China has initially formed various forms of resolving conflicts and disputes, such as people's mediation, administrative mediation, arbitration, and litigation. However, in the current situation where conflicts and disputes are diversified, complex and difficult, it is necessary to establish and improve a sound system based on the grassroots, with people's mediation as the basis and link, and supported by administrative mediation, judicial mediation and other forms of mediation, and mutually beneficial A diversified conflict and dispute resolution mechanism with coordination, positive interaction, complementary functions, and procedural connection.
(1) In-depth study and improvement of the people’s mediation system
China is a civilized country with thousands of years of history. In particular, Confucian culture advocates that harmony is the most precious, beautiful and beautiful concept, and it has an important status and influence in Mandarin Chinese.
For most ordinary people, after a dispute occurs, they often hope that the dispute can be resolved quickly without harming the peace, and taking the dispute to court is usually considered to be a sign of extreme breakdown in the relationship. People's mediation should be a unique system in China. Its advantages are that it has a sound organization, is rooted in the grassroots, knows the actual situation, responds to requests, and has a solid mass base, which is irreplaceable. His role is to strengthen unity among the people, promote the construction of spiritual civilization, and close relations between the party and the masses. Practice has proved that people’s mediation is in line with China’s national conditions and should continue to be strengthened and improved.
Contradictions and disputes occur among the masses and at the grassroots level. The construction and institutional establishment of people's mediation organizations should be based on the grassroots level and the village (community) as the frontline. In view of the reality that towns (communities) have fewer people and more things to do, and the staff shortage problem is prominent, it is a prerequisite to improve the construction of grassroots organizations, integrate human resources, and ensure that there are people to do things. Actively guide relevant emerging social organizations to carry out people's mediation work, and promote the extension of people's mediation organizations to industries and fields where conflicts and disputes are prone to such as insurance, finance, construction and urban demolition, land transfer, and industrial and commercial transactions. At the same time, governments at all levels must also increase their support for people's mediation organizations. They must not only strengthen the training of people's mediators, but also comprehensively improve their own quality. Mediation funds must also be included in the government's financial budget and allocate special funds to ensure people's mediation. The work proceeds smoothly.
(2) Provide legal and institutional guarantees for people’s mediation work.
Strengthen legislation and further clarify the nature of the people's mediation system. At present, our country's Constitution, Civil Procedure Law and other laws and regulations have clear provisions on people's mediation, but they are relatively general and principled, and lack clear provisions on the scope of mediation, mediation procedures, effectiveness of mediation agreements, and funding guarantees, making them unfeasible in actual work. . Therefore, the legislative pace of people's mediation should be accelerated, the nature, status, tasks and policies of people's mediation should be further clarified, the organizational structure of people's mediation committees should be clarified, the basic procedures and work specifications of people's mediation work should be clarified, as well as supporting measures such as work subsidies for mediators , so that people's mediation can play a greater role. At the same time, legislation should maintain an open structure to the scope of people's mediation cases, and people's mediation should actively participate in resolving various social conflicts (including minor criminal cases).
At present, in the practice of strengthening comprehensive management of social security and maintaining social stability, our country has explored many effective ways to resolve conflicts and disputes. However, different foundations and practices have affected the legitimacy and authority of dispute settlement to a certain extent, and there is an urgent need to summarize and improve it from a theoretical level, and to elevate successful practices and experiences into laws or rules. First, the main body of social conflicts and disputes is at the grassroots level, and grassroots mediation should be the main method, and top-down resolution methods should not be adopted. Second, establish and improve conflict investigation, information communication, prevention, emergency response and accountability mechanisms to ensure smooth flow of information. Correctly use economic, administrative, legal and emotional means to properly handle conflicts among the people. Use communication, coordination, consultation, departmental diversion, petitions, etc. to do more ideological work to eliminate hidden dangers of conflicts ideologically and emotionally and calm conflicts and disputes. Especially for acute conflicts and disputes, the overall situation of stability and unity must be taken into account, and relevant departments must be coordinated in a timely manner to resolve conflicts. In principle, coercive force cannot be used and it is not appropriate to handle them in the form of litigation to ensure that conflicts and disputes are controlled. We should develop a system of non-litigation dispute mediation rules to ensure the fairness of the dispute mediation process and promote social fairness and justice. Further guide citizens to form a correct and rational concept of the rule of law, seek legal aid and uphold justice in accordance with the law, and serve the construction of a society ruled by law and a harmonious society.
(3) Improve the diversified and multi-channel dispute mediation mechanism.
Practice has proven that mediation and litigation are not the only ways to resolve conflicts. Arbitration, legal services, legal aid, and separate handling by petition departments are all effective ways to resolve conflicts. The key is to carefully sum up experience and straighten out relationships so that various conflicts and disputes can be resolved scientifically and orderly.
Build a diversified and multi-channel conflict and dispute resolution mechanism. First of all, we must ensure that the intermediary organization is properly set up so that conflicts and disputes can occur at any time and be handled at any time.
Therefore, institutions should be established in communities (townships) where conflicts and disputes originate, and organizations and institutions should be established among the people. Secondly, the mediation relationship between departmental conflicts and disputes should be straightened out, conflicts and disputes should be handled rationally, and arbitrariness and temporaryness should be overcome. Strengthen standardization, ensure that people have rules to follow when resolving disputes, institutional mediation responsibilities are clear, and departments are connected in an orderly manner, so as to provide standardized conflict and dispute mediation services to the society and the public to the greatest extent; third, we must highlight the ultimate power of dispute resolution . The people's courts should be based on non-litigation mediation, embody the final power of resolution, solemn legal dignity and supreme authority based on facts, the law as the criterion, and backed by coercive force.
(4) Strengthen the administrative dispute resolution function.
Administrative agencies have the unique advantages of professionalism, comprehensiveness, efficiency and initiative in dispute resolution, and are an indispensable link in the diversified conflict resolution mechanism. Comprehensively standardize and confirm the status and responsibilities of administrative agencies and grassroots governments in civil dispute resolution, distinguish them from civil dispute resolution mechanisms such as people's mediation, give full play to their unique functions, and make them an important component of diversified dispute resolution mechanisms part. With the increase in special disputes such as employment disputes, land disputes, medical disputes, and product quality disputes, professional administrative handling mechanisms have become increasingly important. For example, when it comes to solving the problem of wage arrears for migrant workers, the active intervention of the labor inspection department is far more efficient and economical than resorting to justice, and has a better effect on safeguarding the interests and rights of migrant workers.
(5) Strengthen the People’s Court’s guidance on people’s mediation.
According to the Civil Procedure Law, the Organic Law of the People's Courts, the Organizational Regulations of the People's Mediation Committee and other laws and regulations, it is the legal duty of the People's Court to guide people's mediation work. From the perspective of court adjudication of cases, supporting the legal handling of disputes involving people's mediation agreements is a strong backing for people's mediation work. Therefore, people's mediation and trial work (mainly derived from the trial of civil and commercial cases, including litigation mediation) are interconnected, influence each other, demonstrate each other, and promote each other.
The People's Court should, in accordance with the Supreme People's Court's "Several Provisions on the Trial of Civil Cases Involving People's Mediation Agreements," establish a feedback system and judicial suggestion system for the trial of civil cases involving people's mediation agreements, and strengthen case guidance. If the mediation agreement is changed, revoked or confirmed invalid by the people's court, the people's court may send the effective judgment document to the judicial administrative agency or the people's mediation committee. If it is found that the people's mediator violated the principle of voluntariness and forced the parties to reach a mediation agreement, the people's court shall promptly report it to the judicial administrative agency Or the People's Mediation Committee may propose rectification suggestions to ensure the improvement of the quality of people's mediation agreements. At the same time, in terms of litigation legislation, people's mediation is set as a pre-litigation procedure for certain types of civil disputes, and a pre-trial mediation system is established. In other words, the resolution of these types of cases is "pre-litigation mediation", and the parties need to apply for mediation before filing a lawsuit; if a lawsuit is filed directly with the People's Court without applying for mediation, the People's Court will not accept the case and will inform the parties to apply for mediation from the People's Mediation Organization , or transfer the case to the relevant people's mediation organization for mediation ex officio. We must adhere to the principle of legality and voluntariness, convince people with reason and law, and never give up any opportunity for mediation.
In short, the key to the establishment and improvement of the diversified conflict and dispute mediation and resolution mechanism is to achieve the coordination of various dispute resolution agencies in the dispute resolution process and form a reasonable connection between civil mediation, administrative dispute resolution and litigation [⑦ ]. In the process of reconstructing the mediation system for social conflicts and disputes, we should further improve the unified coordination, positive interaction, and functions based on grassroots mediation, with mediation forces such as people's mediators as the main body, coordination and cooperation of administrative departments at all levels, and court litigation as the final ruling. A complementary, procedurally linked, diversified and multi-channel operating system for social conflicts and disputes is an urgent need to resolve social conflicts and disputes, and is also an inevitable requirement for building a society ruled by law and a harmonious society.