摘要(Abstract):
妥善化解矛盾和解决纠纷是任何社会都必须面对的重大现实问题。本文首先介绍了当前中国纠纷解决机制的形成发展历程及其基本构成,确立了问题讨论的基本背景和理论框架。然后,对纠纷的诉讼解决和非诉讼解决立法、实践状况、存在的问题以及可能的改革举措进行中肯客观的分析。最后,就纠纷解决机制创新与法律体系完善之间的关系做出初步总结与展望。
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基金项目(Foundation): sponsored by the China National Social Science Fund Major Projects in 2014(14ZDC008);;
Beijing Social Science Fund Major Projects(15ZDA03)
作者(Author): 冯玉军;彭小龙;Dai Xinze;Iwo Amelung;
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参考文献(References):
- 1The revolutionary base areas are those areas which were controlled by the Chinese Communist Party between the 1920s and 1940s.They were normally located in hinterland areas such as the Jiangxi Soviet in Jinggangshan controlled by Mao Zedong and Zhu De and later,during the war against Japan,Yan’an,and were used by the Party to experiment with new policies or to perfect them.
- 2Strictly speaking,the current legislation and practice of dispute resolution mechanisms constitutes a hybrid of traditional Chinese law,the legal tradition of the former Soviet Union,the legal tradition of the West,etc.This chapter by no means attempts to deny the impact of these diverse influences,but limits itself here to only dealing with those factors which had the most direct effect on the current legislation and practice.
- 3Yan Maokun,Xiao Yang’s Speech at Yale University,People’s Court Daily,10 October 2004.
- 4In legal studies,research on dispute resolution is initially developed in two different directions.The first is non-litigious mechanisms(alternative dispute resolution)oriented,and mainly dependent on Civil Procedure Law.The second is from the research on sociology of law which focuses on the relationship between law and society particularly paying attention to the actual situation of solving disputes,“living law”and“law in action”;see FAN YU&LI HAO,THE RESOLUTION OF DISPUTES:THEORY,SYSTEM AND PRACTICES,at 1(Tsinghua University Press,2010).
- 5HU MING,BRINGING CRIMINAL JUSTICE INTO THE ADR MECHANISMS:IDEAS,PROBLEMS AND FORMS,in ON THE DEVELOPMENT OF ADR IN THE FIELD OF CRIMINAL JUSTICE,3 Tribune of Political Science and Law,110-120(2013).
- 6On criminal reconciliation(mediation)and the historical development,the regulation and the practice of administrative litigation co-ordination,see CHINA LAW DEVELOPMENT REPORT 2011:TOWARDS A PLURALISTIC IMPLEMENTATION OF LAW,at 352-359(Zhu Jingwen ed.,China Renmin University Press,2011).
- 7FAN YU,LECTURES ON ADR,at 149(China Renmin University Press,2012).
- 8Hao Zhenjiang,On Re-Constructing Non-Litigious Procedures,4 Jrist,128-139(2011).
- 9Id.,128-129;Xiao Jianguo,Procedural Option and Procedural Classification from the Perspective of Responsive Justice:Construction of Civil Procedure and Theoretical Reflection of Legislation,4 The Journal of Renmin University of China,2-12(2012).
- See The Regulations of the People’s Supreme Court on Some Questions of the Work of People’s Courts in Respect to Mediation of Civil Cases.
- For practices of criminal reconciliation,litigation and mediation for administrative compensation and administrative mediation and reconciliation,see Zhu Jingwen,supra note 6.
- Collected Statistical and Historical Material on the Administration of Justice by the Supreme People’s Court:1949-1998(part on civil cases).
- It needs to be pointed out that“too many cases with insufficient personnel”is a very rough description of the situation at national level,and that the situation in different regions may be very different.The most important problem of the eastern regions and cities,for example,is that the number of cases has increased sharply,while the main problem of the Western regions and rural areas is a serious lack of judges.For a more concrete analysis of the problem,see Peng Xialong,Reviving the System of People’s Jurors in Practice 1998-2010,1Chinese Journal of Law,15-32(2011).
- Fan Yu,Re-constructing Mediation,2 Law and Social Development,3(2005).
- Fan Yu,Pluralistic Implementation of Law and Quantificative Research Methods,2 The Journal of Jiangsu University,68-80(2013).
- On the Practice of Property Disputes,Medical Disputes,Labor Disputes,Land Disputes,Consumer Disputes and Other Special ADR(especially mediation),see Zhu Jingwen,supra note 6,96.
- On the practice of arbitration,see Zhu Jingwen,supra note 6,464.
- CHINESE LAW YEARBOOK,volumes 1987-2012;and Zhu Jingwen,supra note 6,303-304.
- We here mainly refer to the analysis of Professor Fan,see Fan Yu,supra note 15.
- The development of property disputes,medical disputes,labor disputes and other specialized areas of disputeresolution mechanisms illustrates this point well.For more details,see Zhu Jingwen,supra note 6,419.
- Fan Yu,supra note 15.
- Zhu Jingwen,supra note 12,457 and 474.
- FAN YU&LI HAO,supra note 4,36.
- About the development of different administrative institutions and the dispute resolution organs established by the institutions,see Zhu Jingwen,supra note 6,chapter four paragraph three“administrative mediation”,368.
- Lv Yanbin,Further Perfecting the Mechanisms of Administrative Mediation,The Newspaper of Chinese Academy of Social Science,May 11,2007.
- Fan Yu,My Humble Opinion on the Problem of Administrative Mediation,6 Guangdong Social Science,174-184(2008).
- Li Shichun&Peng Xiaolong,The Basis and Systemic Construction of the Court-Social Mediation Form of Mediation,1 Henan Social Science,5-10(2010).
- Fan Yu,Comparative Research on Entrusted Mediation:A Discussion of Pre-trial Mediation,3 Tsinghua Law Review,57-74(2013);and Pan Jianfeng,Civil Law and Its Position in Connection with Mediation,1 Peking University Law Journal,185-196(2013).
- Fan Yu,The Paradox of the Lost Balance between Supply and Demand in Legal Resources and Countermeasures,3 The Application of Law,14-19(2011).