중국의 법원조정에 관한 연구

Abstract

By reviewing the present conditions and tasks of the court mediation after examining the change process of the court mediation according to China's judicial reform, this paper provides basic data for our companies and individuals to correctly understand the Chinese court mediation system and make better use it in solving civil disputes in China China is considered to get closer to so called modern legal judicial system because its system is changed from the lawsuit structure where People's Court and the party are opposed around the authority detection of existing judges to consumerism with an emphasis on the attack and defense among parties in addition to the expansion of judicial personnel including judges, establishment of trial norms through judicial reform. However, the traditional dispute resolution method combining mediation and trial that has been conducted for a long time is still emphasized. Rather than being introduced to complement the lawsuit system as part of the lawsuit system, the court mediation procedures of China remained as the lawsuit system itself in the early stage and its operation was completely entrusted to the discretion of the judge, the presiding officer of the court mediation. Although laws or institutions are maintained and roles or functions of the court mediation are changed significantly and the court mediation by laws is emphasized due to judicial reform, ‘political intention’ to promote the stability of the society may bring about the result of sacrificing the rights of the parties. In this situation, the court mediation of China has at least the following tasks. First, since in the case of the court mediation combining mediation and trial, judicial personnel is likely to abuse power, the relationship between the mediation and trial should be established reasonably and medication should be made by law. Second, an attempt to increase the medication rate too artificially for reasons of political intention or limits of judicial resources is likely to violate the party’s right for trial and therefore, it should be institutionalized to allow the party to randomly select either trial or mediation. Third, the problem of judicial corruption should be solved by improving the professional ethics of judicial resources as well as qualifications of judges continuously.