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Introduction of Judicial ADR in Civil Procedure

Author: XuZuo
Tutor: LiFeng
School: Zhejiang University of Technology
Course: Procedural Law
Keywords: Judicial ADR Pretrial procedure mediation adverse cooperation
CLC: D925.1
Type: Master's thesis
Year: 2010
Downloads: 118
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Abstract

As a dispute settlement mechanism,Judicial ADR is the National Judicial Conduct and the combination of the parties desired behavior, and in a fair, just as its value goal. ADR can make our civil justice dispute resolution mechanism in the rational allocation of judicial resources, to solve our society’s growing number of cases and a relative shortage of the Court of the contradiction between the ability to digest, so that the localization of the Judicial Construction of the theoretical reference for ADR target, while judicial ADR comprehensive, thorough, detailed study and discussion, it is extremely urgent and necessary.The dissertation consists of four chapters, except introduction and conclusion.The first chapter is the basic theory of judicial ADR Investigation. By sorting out the literature at present, this definition refers to cases of judicial ADR into the court after the administrative rights to the court as the presiding body, but attached to the proceedings of the lawsuit dispute settlement procedures. Judicial ADR not only whether the court participate in the standADR, it is neither the people, including court-directed mediation, not including court administration or similar authority to resolve social disputes guidance. Then defined on the basis of the concept, summarize the characteristics, classification, function of judicial ADR and the relationship. between litigation.The second chapter is about the current status of China’s judicial ADR. To study the system of judicial ADR, China’s court mediation system is an unavoidable problem, though affiliated with the court alternative dispute resolution mechanisms are different. In this, the authors first examined the development of court mediation track, and detailed assessment of the regulations on court mediation by the supreme court and explanation , pointed out that the mediation has been close to judicial ADR. Subsequently, by analyzing of the court mediation in the judicial practice, summarized the practice of the Court Mediation characteristics, though no specific laws for guidelines, trial courts have begun to explore alternative dispute solution mechanism attached This system is value for the future construction of accumulated experience. Finally, because of the shortcomings of the existing court mediation and the differences with the administration of justice ADR, judicial ADR should be obtained as a model, to transform our court mediation into a judicial ADR mediation.The third chapter will draw the line of the history of evidence exchange between countries with two legal systems. In this part, I will display the background and development of improvement of Judicial ADR in the history of countries, like the US, EU and Japan and analyze different implementations of Judicial ADR, which could provide suggestions to us. ADR provided by a court has become the trend. It is necessary to do comparative analysis, mainly from the history of vertical dimension on their judicial ADR system background and evolution were described in this paper, the analysis of two legal systems of justice based on ADR and its similarities and differences between the operation of the system, and on our inspiration and reference. by the comparative analysis ,the conclusion is: the best starting point for judicial ADR based on pre-trial procedures, but precisely because of China’s Civil Procedure, a complete lack of sense of pre-trial procedures, make dispute resolution in pretrial procedure lost the backing. Therefore, reform of pretrial proceedings as an opportunity to conduct a comprehensive pre-trial mediation Construction of Judicial ADR is the best path.Chapter IV is the instruction of Justice ADR in Chinese pre-trial procedures. First make the civil pre-trial procedures to be a source of dispute resolution and segregation of independent appeal procedures; second is how to transform our court mediation into a judicial ADR mediation..The first creation of the dissertation is on the comparison of Judicial ADR in various countries, instead of static research on the description of systems. It concentrates on dynamic view to analyze differences between Judicial ADR in various countries and makes the conclusion that the close relationship between public strategies and legislations at the different times. That traditional ADR mediation system established in Japan is a kind of compromising to the tradition, trying to make community for the new law and tradition. The Anglo-American modern type of judicial ADR aims to overcome the shortcomings inherent in an adversarial system, to ease the confrontation between the parties, promote cooperation and resolution of disputes. It reflects the judicial ADR naturally contains the consensus and standADRization, contract and institutional paradox, is the modern requirements of the proceedings against the paradox of cooperation and the outer reaction. Judicial ADR system aims to achieve a moderate party autonomy is the prerequisite for "good" fight.The second creation is on analyzing the relationship between pre-trial procedures and judicial ADR, drawn there in time between the two cross; from the essence of view, both in the cross section is the relationship between frame and content. If you compared the bones of pre-trial proceedings, then the judiciary is dependent on its ADR muscle, pre-trial dispute resolution function of the program is run through judicial ADR and can be realized. So the conclusion is, the effective functioning of judicial ADR must rely on pre-trial procedures.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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