Interpretation on Some Opinions of the Supreme People's Court on Establishing and Perfecting Mechanism of Connection of Lawsuit and Alternative Disputes Resolution -- Perspective of the BAC
PART1 Text
Issue volume: court issue 〔2009〕45
Date of promulgation: 2009-07-24
Date of effective: 2009-07-24
Category: reference to policy
Responsible sector: Judicial Revolution Office of the Supreme Court of the People’s Republic of China
Content: http://rmfyb.chinacourt.org/public/detail.php?id=130733
PART 2 The Background of Issuance
The official issue: the spokesperson of the supreme people’s court Mr. Sun Jungong pointed out that China is still in the process of transition and variant in which various contradictions and disputes surge, the more the kinds of the disputes rising, the more difficulties and disputes increasing. The social conflict in new period makes it impossible to resolve disputes only by court itself. It shall make full use of the advantage and characteristic of the arbitration and all kinds of the ADR to establish the mechanism of connection among litigation and alternative disputes resolution scientifically and systematically. The current disputes resolution mechanism in our country cannot reach the need of people, since we haven’t made full use of the civilian mediation. There is lack of harmony between the lawsuit and ADR inc. arbitration, mediation and so on. The proceeding need to be improved and the mediation in lawsuit need to be further enhanced and regulated. Therefore, the Supreme People’s Court takes Establishing and Perfecting Mechanism of Connection of Lawsuit and Alternative Disputes Resolution as an important reform project. In July 2007 the Supreme People’s Court founded the expert organization for this reform project which includes 14 sectors of Legal Affairs Office of the State Council. After extensive research of a wide range of opinions and more than 10 times amendment, the Supreme People’s Court issued the final version.
PART 3 The content regarding arbitration
1.The core target article (Article 2): the core target of establishing and refining the connection mechanism of lawsuit and Alternative Dispute Resolution is to make full use of the judicial power in regulation, guidance and supervision, to perfect the mechanism of connection of the litigation, arbitration, administrative mediation, civilian mediation, commercial mediation, industrial mediation and other approaches of ADR, to improve the institutions establishment of all kinds of disputes resolution and the regulation of proceeding, to prompt ADR mechanism becoming more convenient, flexible and high efficiency in order to ensure the dynamic development of the disputes resolution mechanism.
2.The first article -- To Improve the Development of the Alternative Disputes Resolution Mechanism (Article 4): carrying out Arbitration Law of the People's Republic of China and the relevant judicial interpretation seriously in order to make full use of the arbitration in disputes resolution and to respect and reflect the particular rule of the arbitration in terms of effectiveness of arbitration agreement, the rule of evidence, the procedure of arbitration ,the reasoning of judgment ,the cancellation of an award and the standard of awards enforcement, etc. The People’s court should transact in time of the application for evidence preservation and property preservation.
3. Encourage the arbitration association to make a mediation agreement (Article 9): Where there is no arbitration agreement between the parties to refer their disputes to the arbitration commission for mediation, the reached mediation agreement involved the content of civil right and obligation after the mediation from the particular organization set up by the arbitration commission subject to the principle of neutral and justice has the character of the civil contract after both parties signed or seal.
4. The effectiveness of the mediation execution (Article 12) :the reached agreement involved the payment articles after the mediation from administrative department, the People's Mediation Committee, commercial mediation organization, industrial mediation organizations and other mediation organizations can be endowed the execution effectiveness by notary organs as the parties request subject to the relevant provisions of Notarization Law of the People's Republic of China. The creditor is entitled to apply people’s court with jurisdiction for execution, if the debtor doesn’t fulfill the enforceable notarial deed.
5. The judicial confirm of the medication article (Article 20): the reached agreement with the character of the civil contract after the mediation from administrative department, the People's Mediation Committee, commercial mediation organization, industrial mediation organizations and other mediation organizations can be confirmed the effectiveness by the people’s court with jurisdiction as the party’s request, after signing and sealing by the mediation organization and mediators.
6. The criterion of mediator article (Article 27) the mediator shall comply with the Ethical Standards for mediators. In the procedure of the relevant cases, if the mediator has been found that he is related to the interest of the case that may affect the impartial conduct of the mediation or the mediators have other activities that violate the ethic standards, The People’s court shall impart the mediator to withdraw, replace, terminate mediation or take other appropriate measures. Unless there is an agreement between the parties, the mediator shall not act as a representative on behalf of any party in the same case or the relevant cases after the mediation.
PART 4 Project Histories
In July 2007, the Judicatory Reform Office in Supreme Court set up reform project team.
In late July 2007, commercial arbitration sub-subject team was formally established by the Beijing Arbitration Commission (BAC) and the Chinese International Economic and Trade Arbitration Commission (CIETAC), it became one of the 14 sub-subject teams of the reform project.
On August 15th, 2007, the commercial arbitration sub-subject team had a meeting to make working program.
In September 2007, the BAC was responsible for developing questionnaire to make writing survey to 186 arbitration institutions nationwide.
From September to October in 2007, the sub-subject team went to Nanjing, Shenzhen, Chongqing and Yinchuan to do field research.
In November 2007, the sub-subject team went to France, UK and Singapore to make investigation and studies.
On January 18th, 2008, the research team held a seminar named “Judicial Reform Forum of People’s courts –to establish and improve diversified dispute settlement mechanism Seminar", the sub-subject team sent members to report the mid-term progress of the project. The first draft of the analysis report for the domestic research and questionnaire was completed by the BAC.
In March 2008, the sub-subject team formed the first draft of the commercial arbitration sub-subject project report on the basis of the research analysis report made by the BAC.
In early April 2008, the sub-subject team submitted a formal research report to the Supreme People's Court.
On June 13th, 2008, the research team of the Supreme People's Court held a seminar and put forward “three-step scheme”. In the seminar, each sub-subject team made report and discussion, and the BAC sent members to report the evaluation of the project.
In July 2008, according to the plan and outline for establishing and improving alternative dispute resolution systems, the Juridical Reform Office (JRO) of the Supreme Court held a “Seminar on the Reform of Alternative Dispute Resolution” in Dongguan, Guangdong Province. Representatives from the BAC attended and offered 12 pieces of advice.
In August 2008, the research report of sub-subject team was published by Beijing Arbitration which was given free to the members of the Supreme Court project team and other relevant institutions. http://www.bjac.org.cn/data/dybg.html
On November 14th, 2008, the International Conference of Alternative Dispute Resolution hosted by the China’s Supreme People’s Court, co-organized by Asian Development Bank, Li Jiacheng Foundation, Yangtse River Negotiation and Dispute Resolution Center of Shantou University was held in Beijing. The conference was presided by Mr. Jing Hanchao, the vice-chief justice of Judicial Committee of the Supreme People’s Court. Mr. Shen Deyong, executive vice-president of the Supreme People’s Court, attended the conference and delivered a speech. The members of 14 subject teams under the project, relevant principals from 8 Courts and representatives from related scientific research institutions attended the conference. Mrs. Wang Hong song, the Secretary-general of BAC was invited to make a keynote speech “How to Construct a Perfect ADR Mechanism”.
On December 10th, 2008, the 7th version called for suggestion; Beijing Arbitration Commissions gave its suggestion on 6 articles and some frame problems.
On December 18th, 2008,Mr. Jiang Huiling, Vice Director of Judicial Reform Office of the Supreme People’s Court and staff of Investigation and Research Office visited the BAC, and held a special topic seminar about “Some Opinions about Establishment of a Perfect ADR” (a draft for discussion) drafted by the Supreme People’s Court in order to ask for opinions and suggestions. There were over 10 participants in the seminar including Mrs. Wang Hong song, Secretary-general of BAC, members of the subject team and relevant personals.
From December 2008 to January 2009, the BAC sent the summary of the special topic seminar to member of the project team of the Supreme Court. Mr. Jiang Huiling, Vice Director of Judicial Reform Office of the Supreme People’s Court and Justice Xiang Guohui joined the Mediation Training Program Co-sponsored by the BAC and Straus Dispute Center, Pepperdine University, US. The content about encouraging professional commercial mediation was recognized.
On January,9th,2009, the 8th version called for suggestion, accepted the suggestion on “advocate to commercial mediation” by sub-research team, deleted the article about people’s court has the power to review the mediation verdict and reconciliation agreement subject to Article 52 of the Contract Law; haven’t recognized the institution of commercial mediation
From Feb. to Apr.2009, the 9th version and 10th version came out, during which it just accepted the suggestion from several involved entities included the BAC, at last in the 10th version, the article about “advocate the commercial mediation” reached the BAC＇s suggestion; the content about arbitration institutions engaged in commercial mediation came into the Opinions.
On Apr.17th, 2009, the project team of Supreme Court held the seminar to notify the circumstance of handing in the Opinions to the Political and Judiciary Commission under the Central Committee of the Communist Party of China and called for advices about people’s mediation. Aimed at other entities＇ opinion that the mediation shall be free, it was said that the development of commercial mediation should be diversified and professional, and it is possible that the coexist of state pay and individual pay which have the same legal effectiveness.
On May 27th, 2009, the project team of Supreme Court held the seminar about the reply from the Political and Judiciary Commission. Representatives from the BAC put forward that some articles of the 10th version can be taken into the Opinions directly.
On June 2nd, 2009, the project team of Supreme Court filed the suggestion of last seminar and issued the draft for discussing about “Some Opinions” from the Political and Judiciary Commission under the Central Committee of the Communist Party of China.
On July 24th, 2009, "opinions" was adopted. On July 31st, the research team of the Supreme People's Court held a briefing to circulate the final opinion, listen to all units, all opinions and arrange the next work. They figured that they will continue to follow the "three-step" strategy to promote the progress of work. And they hoped that everyone could feedback the problems and recommendations encountered in the practice positively.
On August 4th, 2009, “Opinions” were officially announced.
PART 5 The expert opinion: the abstract of the article from Professor FanYu of Renmin University.
1. The most important innovation and meaning of Some Opinions is:
First of all, as the result of the cooperation of the practice departments, without the legislation and in the situation that the legislation is blank and conflicting, the judicial department, administrative department and other NGO reply the social demand cooperatively .This mechanism formed through practice and experience is practical and effective, which is also accorded with the rule of public interest and social management. It not only benefits to maintain the social stability, but also make an effort to build the system and develop road with Chinese characteristics.
Secondly, Some Opinions initiate a rule of law Philosophy and good governance reflexivity, that is transferred from advocating State-centered approaches, enforcing the law rigidity, litigation superstition the and regulation by management into social self-governing, enforcing the law flexibly, consulting with people and serving people, and respect to the morality, reason, public policy and traditional resources. This idea will play an active role in calling all possible forces in social management and realizing the good governance.
Thirdly, Some Opinions established several mechanisms to connection lawsuits and ADR in the current legal frame and jurisdiction of court, and also established the mediation agreement judicial confirming mechanism and other mechanism about calling social enforces into the disputes resolution .These measures filled the blank of legal system in disputes resolution which will actually improve the build, use and development of diversified disputes resolution mechanism.
At last, Some Opinions firstly defined and established some important principles and mechanisms, such as the confidential principle in mediation and confirming system of non- litigation mediation agreement. These new provisions play a key role in completing the mediation systems, and also have reference value to the relevant judicial interpretation, the enactment of “People’s Mediation Law” and the amendment of “Civil Procedural Law” and “Administrative Procedural Law”. It will make preparation to the establishment of the legislation system about diversified disputes resolution mechanism.
2. The trend of development in the future
First of all, though the courts play important roles in the diversified disputes resolution mechanism, the grass-roots court cannot guide the overall situation by itself due to its orientations and functions.
Secondly, the ides of litigation superstition are still mainstream in society and legal industry .There are different views on diversified disputes resolution mechanism among the lawyers who are not so active while the mainstream of the law profession have doubt on the mediation . Their attitudes affect the parties, medium and the public voice.
Thirdly, the awareness and the ability of mediation of parties is low, what’s more, the extent of self-governing, participating and toleration is unsatisfactory, the mechanisms of civilian autonomy are in the process of maturation. So in present, the civilian mechanisms need to be encouraged and cultivated, we should not assess them by professional and procedural standard on one hand, on another hand, we need to focus on leading and supervising them in order not to violate the state supervision and relevant regulations.
At last, there is lots of deficiency and blank in the disputes resolution mechanism, therefore it is hard to uniform the same model among the whole country,
To sum up, the ideas and direction are clear in the present, but the most reasonable model needs continuing to explore in the process of disputes settlement. In this respect, the diversified pattern in different places will be last reasonably in a period.
（Lili Jiang）
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