XV Edition GIZ Law Journal

CHINA

CHINA

thus lack faith in the objectiveness of the mediators and the correct application of the law. The government has tried to tackle these deficits by regulating the procedure of the People’s Mediation, by granting financial compensation to mediators to make the position appealing to younger people, as well as by initiating an educational offensive for mediators. In May 2018, the newly appointed Chinese Minister of Justice called for a better education of People’s Mediators and asked legal experts, such as lawyers and retired judges, to join PMC’s and assist in the training of mediators. Another problem comes from government policies like the recently proclaimed national goal of a ‘comprehensive advancement of a society based on the rule of law’. 157 While such a policy and subsequent legislation may help in solving some of the problems mentioned above by unifying mediation procedures and ensuring the proper application of the law by the PMC, it may also pose a threat to the relative autonomy of the committees. The government is faced with the difficult task of regulating the procedure and organization of the PMC and partially integrating them into the formal justice mechanisms in order to maintain a single unified justice system, while at the same time preserving the distinctive characteristics of the People’s Mediation, which form the backbone of their acceptance by the people. So far, despite the massive political and social system changes of the past century and the different policies that came with them, these two colliding interests have successfully been balanced.

be either reprimanded and corrected, or, in serious cases, dismissed. In turn, if a mediator is unlawfully disturbed in his work, he may request assistance from the official authorities. 148 Mediators shall be compensated for a loss in working time due to their mediation work. In cases of injury or disability as a result of the mediation work, the local government will provide assistance for medical care and living expenses. Mediation through a PMC is free of charge 150 and thus offers an easily accessible tool for conflict resolution for all citizens. Furthermore, participating in a mediation is voluntary. Specific clauses in contracts requiring a mediation in case of a dispute are therefore invalid. Several laws, such as the Contract Law or the Marriage Law, explicitly list People’s Mediation as a possible procedure for settling the case and urge the courts to suggest the People’s Mediation to the parties. While a mediation is usually initiated by one of the parties, People’s Courts and public security organs, but also the PMC itself, may initiate a mediation in cases that they see fit - as long as none of the parties objects. According to Art. 12 PML, the mediation parties enjoy certain rights: they may, for example, accept, reject or terminate the mediation at any point, select the People’s Mediator and give statements or opinions at any time. The mediation can be held publicly or behind closed doors, according to the will of the parties. With the parties consent, the mediator may invite relatives, neighbours or colleagues of the parties or other persons with specialized skills

or inappropriate, the parties resume the mediation process and either alter the existing or conclude a new agreement. 4.4. Conclusion Mediation as a means of conflict resolution can look back on a long and time-honoured tradition in China. It has been the primary tool for solving conflicts within the community for several thousand years. Despite the increasing relevance of mediation through courts and certain authorities, the People’s Mediation Committees still perform the vast majority of the mediation work. Due to the cultural importance and widespread acceptance of People’s Mediation as a means for conflict resolution among the population and it’s voluntary and consensual nature, it will very likely continue to form a major pillar of conflict resolution mechanisms in China. Statistics confirm that impression: while the share of mediation cases handled by PMC’s is slowly decreasing, the number of People’s Mediators has remained stable and the total number of cases mediated by PMC’s has even increased. Most importantly, an impressive 96% of the cases mediated are closed with an agreement, which makes it highly effective. 156 Nonetheless, the PMC face problems from multiple angles. Some of the problems lie within the PMC’s themselves: its members are usually elder members of the community, with little to no legal education. The proceedings are not always transparent and the mediation agreements are primarily based on the mutual balancing of interests and less on the law. Many young people, especially in rural communities,

or knowledge to assist in the mediation. Each PMC shall establish rules and procedures for its mediation work. Within these guidelines, the mediator is free to choose whichever method or means he deems useful to advance with the mediation and solve the conflict. The People’s Courts of the lowest instance shall oversee the mediation work and assist the mediators if necessary. Should the parties fail in reaching an agreement, the mediator is required to end the mediation and inform the parties of other, more formal procedures to protect their rights, namely judicial proceedings. 151 If the mediation is successful however, it will end with either a written or oral mediation agreement between the parties. Such an agreement is legally binding to all parties concerned. According to provisions issued by the Supreme People’s Court 152 , a written mediation agreement that has been signed or sealed by both parties entails civil rights and obligations and thus has the character of a civil contract. 153 The parties can jointly apply for judicial confirmation of the agreement at a People’s Court. In that case, the agreement becomes a legal title that can be enforced by the People’s Court, should one party fall short in fulfilling its obligations. 154 If no judicial confirmation is obtained, the PMC that is responsible for the agreement must first remind the party that failed to comply. If one party still fails to fulfil its obligation from the agreement, then the other party may either apply to the local government for support or file a lawsuit against the non-compliant party at the People’s Court. If one (or both) of the parties or the PMC later determine that the agreement is faulty

148 Arts. 8, 9 PML 149 Art. 18 of the Provisions of the Ministry of Justice Concerning the Work of People’s Mediation

150 Art. 4 PML 151 Art. 26 PML 152 Art. 1 of the Provisions of the Supreme People’s Court on Trying Civil Cases Involving the People’s Conciliation Agreements 153 Art. 31 PML, Art. 1 Interpretations 154 Art. 33 PML 155 China Legal Information Center, http://english.legalinfo.gov.cn/2017-07/07/content_30036093_4.htm (retrieved 10/10/2018)

156 China Daily, http://www.chinadaily.com.cn/a/201805/10/WS5af435daa3105cdcf651d31d.html. (retrieved: 12/08/2018) 157 Report of the Chairman of the CPC Xi Jinping to the 19th party congress 2017, http://english.rednet.cn/c/2017/11/06/4466219.htm (retrieved 10/10/2018)

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