Exploring the "Five Step Method" of Settlement and Litigation to Improve the Diversified Dispute Resolution Mechanism
2023-09-06
The civil procuratorial settlement system is established on the basis of the principles of party autonomy and equality, promoting the formation of consensus among the parties, and resolving disputes without harming national interests, social public interests, or the legitimate rights and interests of others. This system is of great significance for repairing social relations, achieving a harmonious settlement of cases, and saving judicial resources. However, throughout the legal provisions, there are no provisions on procuratorial reconciliation in the Civil Code, Civil Procedure Law, etc. Although the Civil Procedure Supervision Rules of the People's Procuratorate have made principled provisions, there are no clear provisions on the types of cases, application procedures, and effectiveness of settlement agreements applicable to this system. This article aims to explore the institutional advantages of civil procuratorial reconciliation, summarize and refine the "five step method" of reconciliation and litigation, and provide suggestions for improving the diversified dispute resolution mechanism. 1、 The institutional advantages of civil procuratorial reconciliation are that civil effective judgment supervision cases can be divided into three categories based on the results of supervision, namely supervision, non supervision, or reconciliation. Whether under supervision or without supervision, if there is a willingness to reconcile between the parties, the procuratorial organs can carry out reconciliation work to promote the resolution of conflicts and disputes. In the choice between being able to supervise and being able to reconcile, procuratorial organs should lean towards reconciliation, mainly because: firstly, from a procedural perspective, the reconciliation process is relatively simple and fast. Supervision, including retrial prosecution suggestions and protests, whether issued after the decision of the procuratorial committee of our court or submitted to a higher procuratorate for protest, the procedures are relatively cumbersome and the case handling cycle is long. The result of procuratorial supervision is to urge the court to initiate retrial procedures, and cannot directly allocate the rights and obligations of the parties. Prosecutorial reconciliation can achieve the legitimate demands of the parties during the appeal stage, and has advantages such as short closing cycle, high judicial efficiency, and simple and convenient procedures. Secondly, from a substantive perspective, reconciliation is conducive to the rapid realization of remedies for the rights of the parties involved. The statutory responsibility of the procuratorial organs is to supervise public power, and to supervise the judicial and enforcement powers of the courts. The ultimate goal of supervision is to redistribute the rights and obligations of the parties involved. The settlement reflects the private rights disposal of the parties involved. Civil law is a private law that emphasizes the autonomy of the parties' will and solves disputes between the parties through settlement and litigation, which is in line with the legislative spirit of the Civil Procedure Law and the essence of civil law in resolving private rights disputes. Article 207 of the Civil Procedure Law stipulates that there are 13 situations in which a court can initiate retrial proceedings. Except for cases of false litigation, illegal crimes committed by adjudicators, and cases that harm public interests, the procuratorial settlement procedure can be applied. Thirdly, from the perspective of litigation value, reconciliation is beneficial for resolving disputes. The goal and core value pursuit of civil litigation is to settle disputes in a definite manner and to settle the case in a harmonious manner. Prosecutorial supervision has uncertainty in the outcome, and it is unknown whether the court will initiate retrial procedures, whether the retrial will adopt supervisory opinions, and how to make judgments. Reconciliation is more conducive to achieving target value and directly solving the issue of finality. Moreover, reconciliation can save judicial resources, optimize the allocation of judicial resources, reduce the burden of litigation on the parties, and practice the principle of justice for the benefit of the people. Reconciliation accompanies the entire process of handling cases, and it is not mutually exclusive with supervision. In practice, there are many cases of using resistance to promote reconciliation.
Edit:Ying Ying Responsible editor:Shen Chen
Source:jcrb.com
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