The position of mediation in contempory Chinese civil justice. A proceduralist perspective
PhD student: Dr P.C.H. Chan
Promotor: Prof C.H. van Rhee
Duration: 1/4/2010 - 30/6/2015
PhD defence: Maastricht, 10/6/2016
Consistent with the Chinese legal tradition that encouraged settlement before resorting to formal magisterial procedures, mediation still plays a significant role in civil and commercial dispute resolution in contemporary China. Chinese-style mediation generally tends to be directive, rather than facilitative. The mediator is more concerned about the correctness of the outcome (based on careful fact-finding) than what the common interests of the parties are.
The doctoral thesis explores, among other issues, the impact of the policy preference to settle court cases by mediation during the tenure of Wang Shengjun as president of the Supreme Peoples Court of the Peoples Republic of China (2008-2013). The problematic procedure of judicial conciliation, under which the trial judge also acts as the conciliator, is discussed in detail with reference to empirical data collected over the course of three years.
Under Wang Shengjun, the civil divisions of the Chinese judiciary turned into state-sponsored mediation centres with the clear mandate to resolve disputes in such a way that the case is closed and the dispute is [truly] resolved (anjie shiliao). The concept of anjie shiliao has social engineering in mind, i.e. the disposal of a lawsuit is insufficient unless it is coupled with the eradication of discontent on the social level in relation to matters arising from the dispute. This concept is consistent with the Chinese governments objective of achieving a harmonious society, the ruling ideology at that time. Other functions of the civil court, for instance the important function of declaring legal norms and enforcement of the law, are at best secondary under the overarching policy that favoured mediation.
Other relevant issues are also explored in the thesis: out-of-court mediation options (in particular the role and function of peoples mediation), the trial management system and its threat to adjudicatory
autonomy, and the special options available to commercial litigants.
The thesis also introduces the legal history of civil litigation in imperial China, the Republic period and the mass-line approach adopted by the Communist Party before and after the establishment of the Peoples Republic of China.
In the afterward, the candidate discusses the current judicial reform efforts which sought to re-establish procedural formalism and the position of adjudication in Chinese civil justice. It is argued that despite policy changes, the litigation and judicial culture (formulated during Wang Shengjuns period) is difficult to change overnight.