XV Edition GIZ Law Journal

CHINA

CHINA

Mediation as a ‘process in which a People’s Mediation Committee persuades the parties concerned into reaching a mediation agreement on the basis of equal negotiation and free will’. 145 That work is not performed by the RC’s themselves, but by People’s Mediation Committees (PMC) installed by either the RC’s or – on a voluntary basis – by enterprises and other entities. The law describes PMC as ‘mass based organizations legally formed to settle disputes among the people’. 146 Their existence is guaranteed by the Constitution of the People’s Republic of China 147 . While mediation is also performed by formal justice actors such as courts, lawyers and certain administrative bodies, the major part of mediation work is still done by the PMC’s. Thus they form one of the key entities for conflict resolution in present-day China. A PMC consists of three to nine mediators, which are either elected or appointed by the villagers/ residents meeting for a three year term. Re-election or -appointment after expiration of the term is possible. 148 According to Art. 14 PML, the members of the committee must be adult citizens, impartial, decent and dedicated to the mediation work and they must possess a certain level of education and legal knowledge, whereas no formal legal education is required. The PMC shall have female members and, in multi-ethnic communities, members from the ethnic minorities. Should a mediator violate the code of conduct for mediation work, e.g. by favouring one party over another, by accepting gifts or bribes or by violating the privacy of one of the parties, he shall

of mediation’ to a policy of ‘stressing mediation’ and later giving up any hierarchy between mediation and formal judicial proceedings. 3.3. People’s Mediation in contemporary China Conflict resolution within present-day China’s communities is mainly performed by the RC’s (both Rural and Village Committees). In 2016, more than 660,000 such committees with a total staff of 2.8 Mio. (25% of which female) existed in China. 140 The nation’s political leadership officially describes them as grassroot organizations of mass self governance. 141 As the major unit for the management and governance of the local community, they perform considerable functions in upholding order and solving conflicts that arise within the community. The 2015 Anti-Domestic Violence Law (ADVL), for example, specifically names the RC as one of the entities responsible for Anti-Domestic Violence work. 142 The ADVL assigns them the responsibility of reporting cases of domestic violence to security organs, supervision over inflictors as well as educational work and psychological counselling. 143 Furthermore, the RC themselves may apply to People’s Courts for a protective order or revocation of guardianship in cases of domestic violence against persons with limited or no capacity for civil conduct and shall support the enforcement of such orders. 144 While these functions mainly concern aspects of local law enforcement, the RC is entrusted with another important responsibility: mediation. The People’s Mediation Law (PML) defines People’s

formal justice mechanisms, due to the KMT favouring a more westernized legal system. The Communist Party of China (CPC) on the other hand built upon a structure of Arbitration Bureaus that had its origins in the Peasant Unions during the Republic of China. Since ‘democratic’ mediation on the grassroot level was interpreted by the CPC as the counter-model to the oppressive official court system of the KMT, the CPC developed a policy of ‘precedence of mediation’ that was upheld until the 1980s. 136 In the regions controlled by the CPC, it transformed the Arbitration Bureau into the People’s Mediation Committee (PMC), whose members were chosen from the mass organizations of the proletariat. 137 After the defeat of the KMT and the proclamation of the People’s Republic of China (PRC) in 1949,

the CPC declared the traditional baojia-structure as anti-revolutionary and, in its efforts to maintain order and at the same time implement the new policies at the communal level, founded so-called Residents’ Committees (RC) in villages and urban areas as a replacement. 138 Furthermore, the CPC set up mediation Committees in communities all over the country and in 1954 formally institutionalized both the RC’s and the PMC’s through several legal provisions. During the Cultural Revolution however, mediation was reinterpreted as beneficial to the enemies of the people, members of PMC’s were attacked and most of the People’s Mediation work ceased until after the Cultural Revolution. 139 In its aim to create a socialist legal system, the CPC later revived the People’s Mediation, but at the same time weakened its position by moving from a ‘precedence

140 China Statistical Yearbook 2017, http://www.stats.gov.cn/tjsj/ndsj/2017/indexeh.htm (retrieved: 10/10/2018) 141 Report of the Chairman of the CPC Jiang Zemin to the 16th party congress 2002 142 Art. 4 ADVL

143 Arts. 14, 17, 22 ADVL 144 Art. 21, 23, 32 ADVL 145 Art. 2 PML 146 Arts. 7, 8 PML 147 Art. 111: ‘The urban and villagers committees install People’s Mediation Committees’;

136 Gerke, p. 29 137 Gerke, p. 31 138 Ngeow Chow Bing, The Residents’ Committee in China’s Political System, Issues&Studies 2/2012, p. 74 139 Gerke, p. 36

98

99