Mediation in contemporary Chinese civil justice : a proceduralist diachronic perspective / by Peter C.H. Chan.
2017
KNQ1758.S47 C43 2017 (Map It)
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Author
Title
Mediation in contemporary Chinese civil justice : a proceduralist diachronic perspective / by Peter C.H. Chan.
Published
Leiden ; Boston : Brill Nijhoff, [2017]
Call Number
KNQ1758.S47 C43 2017
Former Call Number
Ch.P 778 C3601 2017
ISBN
9789004342385 (hardback : alk. paper)
9004342389 (hardback : alk. paper)
9789004342392 (e-book)
9004342389 (hardback : alk. paper)
9789004342392 (e-book)
Description
xii, 327 pages ; 25 cm.
System Control No.
(OCoLC)982652293
Summary
In 'Mediation in Contemporary Chinese Civil Justice', Peter C.H. Chan offers by far 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 examine how judicial culture and beliefs shape the landscape of civil dispute resolution in China.
Note
In 'Mediation in Contemporary Chinese Civil Justice', Peter C.H. Chan offers by far 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 examine how judicial culture and beliefs shape the landscape of civil dispute resolution in China.
Bibliography, etc. Note
Includes bibliographical references (pages 305-321) and index.
Available in Other Form
Online version: Chan, Peter C. H., author. Mediation in contemporary Chinese civil justice Leiden ; Boston : Brill/Nijhoff, [2017] 9789004342392 (DLC) 2017022521
Record Appears in
Table of Contents
Acknowledgements
xi
1.
Introduction
1
1.1.
Research Question and the Scope of this Book
1
1.2.
Concept of Mediation in Chinese Legal Tradition
5
1.3.
Fundamental Concepts in Contemporary Chinese Civil Justice
6
1.4.
`modern' Definition of `mediation'
10
1.5.
Fundamental Conceptual Differences between Contemporary Chinese Mediation and Modern Mediation
12
1.6.
Chinese Court System
15
1.7.
Methodology: A Proceduralist Diachronic Perspective Supplemented by an Empirical Enquiry
17
1.8.
Synthesizing Thoughts in Previously Published Articles
19
2.
Legal History of Civil Mediation in China
20
2.1.
Chinese Legal Culture of wu Song
20
2.2.
Mediation as a Communal Dispute Resolution Mechanism
21
2.3.
Magisterial Adjudication: The Role of Mediation in Civil Dispute Resolution in Imperial China
26
2.4.
Court-referred Pre-action Mediation in the Republican Era (1911--1949)
44
2.5.
Shadow of the Legendary Ma Xiwu: The Legal History of the `people's judge' and the Impact of His Adjudicatory Approach in Contemporary China
46
2.6.
Early Civil Procedural Designs on Court Mediation and Regulation of Out-of-court Mediation in the People's Republic
51
2.7.
Xiao Yang and the Rise of Formalism in Chinese Civil Procedure
53
2.8.
Wang Shengjun's Judicial Philosophy
54
2.9.
Chapter Conclusion
55
3.
Fundamental Tenets of Contemporary Chinese Civil Justice: Substantive Justice, Material Truth and the Chinese Judicial Mindset
56
3.1.
Chapter Introduction: The Underlying Philosophy of Contemporary Chinese Civil Adjudication
56
3.2.
Pre-eminence of Substantive Justice in Chinese Civil Adjudication: Using Civil Appeals in China as Illustration
57
3.3.
Pre-eminence of Substantive Justice in Chinese Civil Adjudication: Using the Adjudication Supervision Procedure as Illustration
70
3.4.
Civil Fact-finding in China -- The Search for Material Truth
98
3.5.
Chapter Conclusion
112
4.
Connecting China's Private and Public Spheres of Civil Dispute Resolution: Grand Mediation, People's Mediation and Social Engineering
113
4.1.
`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
113
4.2.
People's Mediation
122
4.3.
Origins and Ideological Underpinnings of People's Mediation
127
4.4.
Nexus between Private and Public Spheres of Civil Dispute Resolution
137
4.5.
Chapter Conclusion
141
5.
Court Mediation in the `Wang Courts' and the Impact of Wang Shengjun's Policies on Future Developments
143
5.1.
Introduction -- The Relevance of a Study on the Wang Courts
143
5.2.
Introducing Mediation in the Wang Courts: The Judicial Responsibility System, Case Management and Social Harmony
145
5.3.
Position of the Individual Judge within the Chinese Judiciary
158
5.4.
Critical Examination of Court Mediation in the Wang Courts and beyond: Procedural Problems and Solutions
161
5.5.
Settlement Rate in Appellate Review and Re-adjudication
179
5.6.
Chapter Conclusion: Reforming Court Mediation in China by Separating Conciliation from Adjudication
179
6.
Empirical Analysis of Judicial Conciliation in China
182
6.1.
Judicial Perception is Reality: The Value of Qualitative Empirical Research on Chinese Law and Procedure
182
6.2.
Methodology
183
6.3.
Social Effect vs. Procedural Justice: Is Anjie shiliao Still the Paramount Goal in Chinese Civil Justice?
188
6.4.
Is the Policy of `prioritizing conciliation' Still in Effect? What is Its Impact on Adjudication?
191
6.5.
Coerced Conciliation and Undue Influence from the Judge
193
6.6.
Effect of Judicial Conciliation on Ultimate Judgment Should There be No Settlement
194
6.7.
Position of Substantive Law in Judicial Conciliation
196
6.8.
Trial Management, Case Quality Evaluation and Settlement Rate
197
6.9.
Practical Aspects of Judicial Conciliation as Revealed in the Surveys
198
6.10.
Chapter Conclusion: The Position on Judicial Conciliation since March 2013 as Revealed in the Last Round of Interviews
201
7.
Trial Management in China: The Institutionalization of Judicial Preference for Court Mediation in Civil Litigation -- Overview of Principles and Practice
203
7.1.
Trial Management and Civil Justice: Bureaucratic Justice or Managerial Excellence?
203
7.2.
Overview of the 2011 SPC Case Quality Opinion
205
7.3.
Operational Aspects of Civil Trial Management in China
210
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
214
7.5.
Critical Examination of Case Quality Evaluation System from the Perspective of Procedural Justice
215
7.6.
Chapter Conclusion
217
8.
Conclusion: Seven Areas of Tension in Chinese Dispute Resolution - The Impact on In-court and Out-of-court Mediation
219
8.1.
`Chinese exceptionalism' and Civil Justice
219
8.2.
First Area of Tension in Chinese Dispute Resolution: Black-Letter Law vs. Judicial Practice
220
8.3.
Second Area of Tension in Chinese Dispute Resolution: Official Representation of Justice vs. the Reality of Mass Case-Processing Needs
221
8.4.
Third Area of Tension in Chinese Dispute Resolution: SPC Policy vs. Local Implementation
222
8.5.
Fourth Area of Tension in Chinese Dispute Resolution: Procedural Justice vs. Substantive Justice
223
8.6.
Fifth Area of Tension in Chinese Dispute Resolution: Bureaucratic Supervision vs. Adjudicatory Autonomy
224
8.7.
Sixth Area of Tension in Chinese Dispute Resolution: International Norms of Practice vs. Chinese Exceptionalism
225
8.8.
Seventh Area of Tension in Chinese Dispute Resolution: Regulatory State vs. `autonomy' of the Judiciary
226
8.9.
Final Remarks
227
8.10.
Legal Culture and Civil Mediation in China
231
8.11.
Political Culture and Civil Mediation in China
232
8.12.
Final Word
233
9.
Afterword: The Recent Judicial Reforms in China: Its Impact on Civil Justice and Mediation
235
9.1.
Pre-reform Indicators
235
9.2.
Pilot Programmes and SPC Circuit Courts
236
9.3.
Latest SPC Reform Package (2015)
237
9.4.
Redefining the Power Structure: Re-distributing Powers of the Chinese Communist Party to Procurators and Courts
243
9.5.
Concluding Remarks: Reform's Impact on Mediation: Superficial Change or Real Overhaul?
244
Appendices
Appendix I
Table of Key Statutes, Statutory Instruments, Judicial Interpretations, Rules and Regulations of the Supreme People's Court and Abbreviations
249
Appendix II
Interview Log
252
Appendlx III
Survey Questionnaires and Master List of Interview Questions
259
Appendlx IV
List of Published Articles by the Author: The Contents of Which Were Cited and/or Repeated in This Book
287
Appendix V
Commercial Mediation in China: A Guide for Foreign Enterprises
289
1.
Introduction
289
2.
Institutional Commercial Mediation -- The Mediation Centre of the China Council for the Promotion of International Trade/China Chamber of International Commerce
295
3.
Court Mediation and Its Impact on Commercial Dispute Resolution Involving Foreign Enterprises
300
4.
Med-Arb: Mediation in CIETAC Arbitration
303
5.
Conclusion
304
Bibliography
305
Articles Cited
322
Index
325