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Mediation in Contemporary Chinese Civil Justice: A Proceduralist Diachronic Perspective

Mediation in Contemporary Chinese Civil Justice: A Proceduralist Diachronic Perspective

Author: Peter C.H. Chan
Publisher: Brill Nijhoff
ISBN: 9789004342385
Published In: July 2017
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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In Mediation in Contemporary Chinese Civil Justice, Peter Chan offers one of the most comprehensive analyses of the system of mediation of civil and commercial disputes in contemporary China. Based on extensive interviews with judges and a survey on in-court mediation covering 24 courts in China, the author seeks to answer a question that interests many legal scholars: Is it practically feasible for the mediation of civil disputes in China to take the shape of genuine alternative dispute resolution, rather than being used by the courts as a means to preserve social stability? The book looks beyond procedural rules and examines how judicial culture and beliefs shape the landscape of civil dispute resolution in China.

Acknowledgements

Introduction

1.1 The Research Question and the Scope of this Book

1.2 The Concept of Mediation in Chinese Legal Tradition

1.3 Fundamental Concepts in Contemporary Chinese Civil Justice

1.4 The ‘modern’ Definition of ‘mediation’

1.5 Fundamental Conceptual Differences between Contemporary Chinese Mediation and Modern Mediation

1.6 The Chinese Court System

1.7 Methodology: A Proceduralist Diachronic Perspective Supplemented by an Empirical Enquiry

1.8 Synthesizing Thoughts in Previously Published Articles

Legal History of Civil Mediation in China

2.1 Chinese Legal Culture of wu Song

2.2 Mediation as a Communal Dispute Resolution Mechanism

2.3 Magisterial Adjudication: The Role of Mediation in Civil Dispute Resolution in Imperial China

2.4 Court-referred Pre-action Mediation in the Republican Era (1911–1949)

2.5 The Shadow of the Legendary Ma Xiwu: The Legal History of the ‘people’s judge’ and the Impact of His Adjudicatory Approach in Contemporary China

2.6 Early Civil Procedural Designs on Court Mediation and Regulation of Out-of-court Mediation in the People’s Republic

2.7 Xiao Yang and the Rise of Formalism in Chinese Civil Procedure

2.8 Wang Shengjun’s Judicial Philosophy

2.9 Chapter Conclusion

Fundamental Tenets of Contemporary Chinese Civil Justice: Substantive Justice, Material Truth and the Chinese Judicial Mindset

3.1 Chapter Introduction: The Underlying Philosophy of Contemporary Chinese Civil Adjudication

3.2 The Pre-eminence of Substantive Justice in Chinese Civil Adjudication: Using Civil Appeals in China as Illustration

3.3 The Pre-eminence of Substantive Justice in Chinese Civil Adjudication: Using the Adjudication Supervision Procedure as Illustration

3.4 Civil Fact-finding in China – The Search for Material Truth

3.5 Chapter Conclusion

4. Connecting China’s Private and Public Spheres of Civil Dispute Resolution: Grand Mediation, People’s Mediation and Social Engineering

4.1 The ‘Da Tiaojie’ (Grand Mediation) System and the Ideological Basis for the Rise of Mediation: A Bird’s Eye View of the Chinese Mediation Regime under Da Tiaojie

4.2 People’s Mediation

4.3 Origins and Ideological Underpinnings of People’s Mediation

4.4 Nexus between Private and Public Spheres of Civil Dispute Resolution

4.5 Chapter Conclusion

Court Mediation in the ‘Wang Courts’ and the Impact of Wang Shengjun’s Policies on Future Developments

5.1 Introduction – The Relevance of a Study on the Wang Courts

5.2 Introducing Mediation in the Wang Courts: The Judicial Responsibility System, Case Management and Social Harmony

5.3 The Position of the Individual Judge within the Chinese Judiciary

5.4 Critical Examination of Court Mediation in the Wang Courts and beyond: Procedural Problems and Solutions

5.5 Settlement Rate in Appellate Review and Re-adjudication

5.6 Chapter Conclusion: Reforming Court Mediation in China by Separating Conciliation from Adjudication

An Empirical Analysis of Judicial Conciliation in China

6.1 Judicial Perception is Reality: The Value of Qualitative Empirical Research on Chinese Law and Procedure

6.2 Methodology

6.3 Social Effect vs. Procedural Justice: Is Anjie shiliao Still the Paramount Goal in Chinese Civil Justice?

6.4 Is the Policy of ‘prioritizing conciliation’ Still in Effect? What is Its Impact on Adjudication?

6.5 Coerced Conciliation and Undue Influence from the Bench

6.6 Effect of Judicial Conciliation on Ultimate Judgment Should There be No Settlement

6.7 The Position of Substantive Law in Judicial Conciliation

6.8 Trial Management, Case Quality Evaluation and Settlement Rate

6.9 Practical Aspects of Judicial Conciliation as Revealed in the Surveys

6.10 Chapter Conclusion: The Position on Judicial Conciliation since March 2013 as Revealed in the Latest Interviews

Trial Management in China: The Institutionalization of Judicial Preference for Court Mediation in Civil Litigation – Overview of Principles and Practice

7.1 Trial Management and Civil Justice: Bureaucratic Justice or Managerial Excellence?

7.2 An Overview of the 2011 SPC Case Quality Opinion

7.3 Operational Aspects of Civil Trial Management in China

7.4 Effect of the Trial Management System on Court Mediation in China: An Institutionalized Distortion of (What is Supposed to be) an ADR Mechanism

7.5 A Critical Examination of Case Quality Evaluation System from the Perspective of Procedural Justice

7.6 Chapter Conclusion

Conclusion: Seven Areas of Tension in Chinese Dispute Resolution – The Impact on In-court and Out-of-court Mediation

8.1 ‘Chinese exceptionalism’ and Civil Justice

8.2 First Area of Tension in Chinese Dispute Resolution: Black-Letter Law vs. Judicial Practice

8.3 Second Area of Tension in Chinese Dispute Resolution: Official Representation of Justice vs. the Reality of Mass Case-Processing Needs

8.4 Third Area of Tension in Chinese Dispute Resolution: SPC Policy vs. Local Implementation

8.5 Fourth Area of Tension in Chinese Dispute Resolution: Procedural Justice vs. Substantive Justice

8.6 Fifth Area of Tension in Chinese Dispute Resolution: Bureaucratic Supervision vs. Adjudicatory Autonomy

8.7 Sixth Area of Tension in Chinese Dispute Resolution: International Norms of Practice vs. Chinese Exceptionalism

8.8 Seventh Area of Tension in Chinese Dispute Resolution: Regulatory State vs. ‘autonomy’ of the Judiciary

8.9 Final Remarks

8.10 Legal Culture and Civil Mediation in China

8.11 Political Culture and Civil Mediation in China

8.12 A Final Word

Afterword: The Recent Judicial Reforms in China: Its Impact on Civil Justice and Mediation

9.1 Pre-reform Indicators

9.2 Pilot Programmes and SPC Circuit Courts

9.3 The Latest spc Reform Package (2015)

9.4 Redefining the Power Structure: Re-distributing Powers of the Chinese Communist Party to Procurators and Courts

9.5 Concluding Remarks: Reform’s Impact on Mediation: Superficial Change or Real Overhaul?

appendices; bibliography; index.

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