Investigation Report on the Mediation of Criminal Private Prosecution Cases in Chongqing Municipal Courts

Investigation Report on the Mediation of Criminal Private Prosecution Cases in Chongqing Municipal Courts

Chongqing Second Intermediate People's Court Task Force*

The mediation of criminal private prosecution cases means that the people's courts organize the criminal proceedings and incidental civil actions brought by the private prosecutors in the trial of the private prosecution case, and finally reach the agreement between the two parties on the issue of economic compensation. The defendant has obtained the private prosecution. Under the understanding, the private prosecutor renounced the method of closing the case for the criminal responsibility of the defendant. It is one of the most distinctive components of the Chinese judicial system and has been hailed as “Oriental Experience” by foreign countries. In the trial of criminal private prosecution cases, it provides an effective means for the people's court to correctly handle minor criminal cases and coordinate the contradictions of the interests of all parties. However, in the practice of trials, due to the abuse of mediation rights, "arbitrary mediation", "re-tune the light sentence" and "mediation disorder", etc., resulting in the abnormality of "the expansion of mediation function and the decline of judgment function" Its negative effects are increasingly prominent. To this end, at the beginning of this year, our institute reported the "Mediation System for Criminal Private Prosecution Cases" to the Chongqing Higher People's Court as a key project of the city's courts in 2005, approved by the Municipal High Court and ordered the project to be completed. The leaders of our hospital attached great importance to it, and Geng set up a research group and formulated a thorough research plan for the first, second, third and fourth intermediate courts of Chongqing and the Chengdu Intermediate People's Court of Sichuan Province, as well as 21 grassroots courts in this city and other places. In the case of private prosecution cases, investigations over a period of more than three months were conducted in the form of field discussions and letter visits. In the survey, 50 questionnaires and research outlines were issued, and 10 special symposiums were held. It better grasped the mediation situation, basic practices and major problems in the trial of criminal private prosecution cases in Chongqing courts and some other provincial and grass-roots courts. The relevant situation of the subject is reported as follows:
I. Current status of the operation of the mediation system for criminal cases
Article 172 of the Criminal Procedure Law stipulates: "The people's court may mediate a private prosecution case; the private prosecutor may reconcile or withdraw the private prosecution with the defendant before declaring the judgment." Therefore, the mediation of private trials by the people's courts is an organic combination of public power and private power. On the one hand, the judge acts as a neutral third party involved in the mediation process, leads mediation, and ensures the legal force of the mediation book; The creation of the mediation agreement is based on the results of joint consultations between the parties, and the mediation agreement is accepted by both parties. To this end, compared with the judgment of the people's court, mediation has its unique value of judicial relief, which is an important means for the people's court to "fix the dispute." Judging from the situation of this investigation, the Chongqing courts can apply the principle of mediation to the trial of private cases in the trial of criminal cases, and continue to explore new mediation methods. Mediation has become a necessary procedure for trying such cases. Not only mediation will be conducted before the trial, but also during the trial and before the referee. In many cases, repeated mediations have been carried out. The ability to mediate and close the case as much as possible has become the guiding ideology for the trial of such cases, and has achieved good legal and social effects.
The overall situation of the operation of the mediation system for criminal cases of criminal cases in Chongqing court from 2002 to 2004

Table 1 Overall situation of the operation of the mediation system for criminal cases of criminal cases in Chongqing court from 2002 to 2004

Annual number of cases accepted, number of mediation cases, mediation rate
2002 1105 658 59.54%
2003 1078 628 58.25%
2004 875 434 49.60%

Table 2 Mediation of Criminal Private Prosecution Cases of Four Intermediate Courts in Chongqing from 2002 to 2004


The Fourth Intermediate People's Court of the Second Intermediate People's Court
Number of cases subject to mediation % Number of cases mediation number % Case number mediation number % Case number mediation number %
2002 678 398 58.70 232 149 64.22 136 71 52.20 59 40 67.79
2003 659 392 59.48 240 124 51.66 115 80 69.56 64 32 50
2004 570 305 53.50 166 77 46.38 61 24 39.34 58 27 46.55

1. It can be seen from Table 1 that the number of cases, mediations and mediation rates of criminal cases in Chongqing courts from 2002 to 2004 are decreasing year by year, and the decline is still relatively large, especially the mediation rate drops by nearly 10 %. This seems to be in line with the current atmosphere of "co-creating a harmonious society", the judicial concept advocated by the Supreme Court that "can adjust the tone, when the judgment is judged, the judgment is combined, and the case is closed".
2. At least two problems can be seen through Table 2: First, the number of cases, mediations, and mediation rates of criminal prosecution cases in four middle schools in Chongqing from 2002 to 2004 also showed a downward trend year by year, especially The mediation rate of the Fourth Intermediate People's Court decreased by 21.24%. Second, the mediation rate of criminal prosecution cases in the four middle courts is not balanced. The lower the rate of mediation in economically developed regions, the lower the rate of mediation in economically underdeveloped regions.
Based on field investigations, seminars, and analysis of relevant information collected, we believe that the mediation rate of criminal cases in Chongqing courts has been declining year by year and the reasons for the imbalance in various regions are mainly due to the following aspects:
1. Changes in the judicial policy and the internal evaluation mechanism of the court work. In the 1980s and the early 1990s, due to the fact that the 79 Criminal Procedure Law stipulated a relatively coarse mediation system for private prosecution cases, the mediation of private prosecution cases was not standardized in practice, thus bringing certain restrictions to the mediation of private trials in the people’s courts. The negative impact has been attacked by the practical and academic circles. To this end, the Supreme Court has carried out a reform of the trial mode represented by the standardization and technicalization of the judiciary. The core of this reform is to improve the function of the trial and the quality of the trial, emphasizing the party's doctrine, and advocating the confrontational and court judgment rates. As an informal trial, mediation is ignored because it does not reflect the “majesty” of the law. The mediation rate is no longer the standard for assessing the performance of judges within the court, and it is no longer linked to incentives and other incentives, thus reducing judge-induced mediation. Psychological motivation. The direct consequence of this kind of judicial policy is that some judges, especially young judges who have received formal legal education, no longer pay attention to mediation. They believe that mediation is not a high standard of theory and a weak ability to control trials. They are keen on the exercise and jurisdiction of jurisdiction. The pursuit of quick trial and quick judgment, mediation to go through the scene, leading to a considerable number of cases that may be mediating "one sentence."
2. The number of public prosecution cases has increased year by year. Taking the Second Intermediate People's Court of Chongqing as an example, the number of public prosecution cases in the hospital from 2002 to 2004 increased by 15% per year. It is difficult for the court to have more energy to engage in mediation. In the investigation, the grassroots courts generally responded. As the number of court judges has decreased in recent years and the burden of cases has increased year by year, this contradiction has also directly affected the mediation rate.
3. The judge's recognition of mediation. The judge's practice background, knowledge structure, social experience and life experience directly affect the understanding and attitude towards mediation. There is a big difference between the attitude of the judges of the experience and the judges of the school, the judges of the grassroots courts and the judges of the upper courts and above. Generally speaking, due to the complexity of birth, the experienced judges enter the court to train and work. These judges play the role of the main force in the grassroots courts and use the closest contact with the local society. They are reasonable in solving minor criminal disputes. Social effects are more concerned, and rich social experience and life experience make them comfortable with mediation and can achieve the unity of efficiency and effectiveness of mediation. The academic judges have a systematic legal education, have a rational understanding of legal rules and procedures, pay more attention to the technical and normative nature of the law, emphasize the legitimacy of the program and the rigor of the judicial process, and advocate the adoption of confrontational programs. The careful evidence rule system, rigorous legal interpretation and reasoning are used to explain the spirit of the law and the jurisprudence of the judgment, and to educate and guide the people, promote the authority of the judiciary, and "not too cold" for informal mediation. The attitudes of the judges of different levels of courts are also very different. In the two-level courts of the Chongqing Second Intermediate People's Court in this investigation, the judges of the grass-roots courts are affected by factors such as the investigation of wrong cases, the rate of protest, and the rate of return of judgments. Generally, we are optimistic about the practicality of mediation and pay attention to mediation. Because the judges of the Intermediate People's Court are less affected by these factors, the trials are more detached, so the emphasis on mediation is insufficient.
4. Reasons for the parties. In the panel discussion with the grass-roots courts, they generally believed that due to the improvement of the legal awareness of the parties, the difficulty of mediation was more difficult than that in the 1990s, and the judge's reasoning was difficult to be accepted by the parties. The reasons include: whether a case can be successfully settled. First, it depends on the possibility that the case itself has mediation. The content includes: the nature of the case, whether the defendant is present, the mediation permission of the agent, and the litigation of the party. The second is to see the judge's ability to mediate and the degree of effort; while the legal awareness of the parties increases, the decline of public authority makes the parties no longer blindly manipulate the public power, which also makes the judge's mediation authority weaker. The judge's willingness to unilaterally mediate does not change the choice of the parties; the so-called "improvement" of the legal consciousness of the parties is still at an irrational stage. Including: the uncertainty of the law makes the expectation of the litigant too high; there is no mediation sincerity, lack of rational judgment and concern about the cost-effectiveness of litigation; doubts about the judge's mediation motive; self-operational justice intention and blind self-confidence; The finalization of litigation is the partial understanding of the improvement of legal awareness.
5. The participation of lawyers. During the discussion, the judges generally agreed that the participation of lawyers in the mediation of criminal prosecution cases increased the difficulty of mediation. The participation of lawyers in the mediation of criminal prosecution cases helps the judges to ascertain the facts, correctly apply the law and convey information to the parties. On the other hand, it can restrict the judge's arbitrary behavior in mediation to a certain extent, and plays a supervisory role in mediation. This is understandable. However, although Chongqing is a municipality directly under the central government, its “big city, big rural” pattern makes most lawyers’ business still dominated by litigation. They seize the urgency of the parties’ efforts to win the case, preferring to carry out the litigation in the end. Mediation, because the contrast between the court judgment and mediation is obvious to the lawyer's earnings.
The specific situation of the operation of the mediation system of criminal cases in Chongqing court from 2002 to 2004
1. Case review
Table 3: The specific situation of the operation of the mediation system for criminal cases in Chongqing court from 2002 to 2004


deliberately
hurt
weight
marriage
Abandon
Abuse
insult
defamation
Invade
Take up
Production and sales
Fake goods
Infringement
Intellectual property rights
Violent interference
Freedom of marriage
Illegal invasion
Entering the home
2002 1017 46 10 6 5 0 0 3 18
2003 1016 40 3 2 2 0 0 1 14
2004 816 32 8 3 3 0 0 2 10

Table 4: The specific situation of the operation of the mediation system for criminal cases of criminal cases in Chongqing court from 2002 to 2004



deliberately
hurt
weight
marriage
Abandon
Abuse
insult
defamation
Invade
Take up
Production and sales
Fake goods
Infringement
Intellectual property rights
Violent interference
Freedom of marriage
Illegal invasion
Entering the home
2002 630 10 5 4 1 0 0 0 8
2003 598 25 1 1 1 0 0 0 2
2004 400 20 5 1 1 0 0 0 7

Tables 3 and 4 show that the intentional injury crimes in the criminal cases filed by the Chongqing court from 2002 to 2004 accounted for an absolute majority, and the mediation rate was relatively high, both at around 50%. On the basis of clarifying the faults of both parties, the people's courts in such cases can generally settle the case as long as the defendant timely puts the compensation in place or formulates the repayment plan.
Although the number of cases involving bigamy cases is small, the mediation ratio has been increasing year by year.
Due to the small number of other cases, the mediation rate is relatively high, but it is incomparable.
2. The stage and program of mediation
In this survey, we have an understanding of the division of mediation between the four Intermediate Courts in Chongqing and their grass-roots courts.
Mediation before the court. After the self-established case was put into operation, some court courts undertook the service of the indictment and the pre-trial mediation of the private prosecution case, and received good results. For example, the Yuzhong District Court received 22 cases in 2002, 15 of which were settled before the court. It is particularly worth mentioning that it is the Shuyang County Court. From 2002 to 2004, the court accepted a total of 64 criminal prosecution cases, of which 53 were settled before the court.
Mediation in the trial. After the implementation of the case process management, the judge must formally contact the parties at the time of the trial. There are generally two operating procedures for mediation at the trial stage. One is to mediate after the end of the court debate. The purpose is to promote mediation and improve mediation efficiency on the basis of a comprehensive understanding of the case; the second is to spend 10- before the court session. A brief mediation of 20 minutes is mainly to solicit the desire of the parties to mediate. If there is a mediation wish and the gap is not large, the mediation will be conducted. If not, the mediation will be held after the trial is over. Judging from the investigation, most of the criminal private prosecution cases are being mediation in the trial. In the adoption of the method, the above two methods are used interchangeably.
For the mediation procedures of the courts sent by the people's courts at the grassroots level, the procedures for mediation are also inconsistent because of the different management modes. In the court where the trial is divided, the judge does not see the party before the first trial, and the mediation is only carried out after the trial. However, some courts have not implemented strict separation of trials, so there is more room for mediation. For example, when the parties are served a complaint, they ask whether the parties agree to mediation. If they agree, some cases can be mediated without formal court hearings. Close the case.
3. Ways and methods of mediation
In the discussion, the topics we talked with the judges focused more on the methods and methods of mediation, mainly in the following aspects:
1. "Back to back" is the main method of mediation. In the discussion, most judges believe that face-to-face mediation is almost impossible, mainly through the judges to convey the information of the parties, "back to back" is a commonly used method.
2. In terms of specific operations, local courts can inherit some excellent mediation traditions and also innovate in practice. As a traditional method of mediation, “criticism education” is a method in which judges use the general ethical principles generally accepted by the society to promote the parties to reach a mediation agreement. This kind of teaching is not only an empty persuasion education, but also often refers to the authority of the judge. To implement it. For example, the Qianjiang District Court proposed to use the special litigation mode of the private prosecution to achieve economic compensation and the defendant’s desire to get rid of the “prison”, and proposed “to use emotional people and force people to The mediation method of the pressure of people. Although this expression still needs to be considered in the form, it has achieved good legal and social effects in practice.
3. Persuade the parties to accept mediation by revealing the content of the judgment. Most judges believe that in the case of clear facts, the method of partial judgment can be disclosed to persuade the parties to accept mediation. Judges such as the First Intermediate People's Court, the Second Intermediate People's Court, the Fengjie, Xiushan, and Shapingba Courts all recognize their reasonableness. Individual judges believe that the judgment information is conveyed to the parties, or the judgment of the previous similar case is given to the parties for review. It is not to disclose the judgment information, but to give the parties a correct guidance and explanation in the case of clear facts, so as to avoid the judgment of the parties. The expectations are too high to achieve mediation.
4. The judge took the initiative to propose a mediation plan for the parties. Among the “Investigation Forms on the Mediation System of Criminal Private Prosecution Cases” designed by the research group, there is a column on “mediation methods”. According to the statistical data, 85% of the cases are judges who have resolved their ex officio rights in consideration of the specific circumstances of both parties. The second part of the proposal was negotiated by the defender and the litigation agent. Only a very small number of cases were initiated by the parties.
5. For the phenomenon of “long-term indecision”, from the situation reflected in the survey, because the current trial limit management is more stringent, it is not the mainstream to drag and drop, but only a very small number of phenomena, mediation is not successful, generally in the trial period. Close the case.
In short, because the ability of the parties to negotiate on their own is weak, if the judge is not active in the administration of justice, the mediation will be blind. Therefore, in practice, judges often use various methods flexibly to facilitate the parties to reach a settlement. As for the effect of mediation, judges often say that "due to the limitations of the legal process itself, sometimes a bad mediation has a better social effect than a good judgment." In fact, due to the current economic development, the transparency of information, the convenience of communication, and the increased opportunities for parties to accept legal services, the problems that the parties do not understand during the mediation process often promptly consult relatives and friends or legal services and lawyers, etc. It offsets the drawbacks of the mediation program itself.
Second, the current practice of the Chongqing court using the mediation system to handle criminal cases of criminal prosecution
Through field research on Chongqing and Chengdu courts, and through some typical cases, the research team found some good practices in the mediation of private prosecution cases, which are summarized as follows:
The leadership attaches great importance to it, and the judges are responsible for the completion of the mediation of criminal prosecution cases as a very necessary trial work. The leaders of the courts at all levels strictly follow the requirements of the Supreme Court to regard the mediation of criminal cases of private prosecutions as an important task of "consulting and prosecuting disputes. For example, the Fengjie County Court stipulates that the mediation rate of private prosecution cases shall not be less than 25% in the annual "Personal Responsibility System", deducting one point for each lower one percentage point, adding one point for each additional percentage point, and serving as the basis for the year-end evaluation. To this end, the court judges are highly responsible for the mediation work when trying such cases. Instead of simply taking the program, they do their best to do the mediation work with due diligence and enthusiasm. At the location, the work of both parties is repeated several times.
Formed an effective way of mediation. The judges preside over mediation generally have three stages: mediation preparation, mediation statement and mediation negotiation. At the time of mediation preparation, the judge fully understands the case, formulates a mediation plan according to the characteristics of the parties, and grasps the key points of mediation. During the mediation presentation stage, the victim's statements and requirements are carefully listened to, and the defendant's situation is also known and educated separately. At this stage, the parties are also analyzed for the interest of mediation and judgment settlement. During the mediation and consultation stage, the judge presides over the proposal and proposes a mediation plan. The two parties conduct face-to-face consultations and settlements.
Give full play to the role of litigation agents, relatives of relatives, and grassroots organizations to promote mediation success. For some cases where the contradictions are intensified and difficult to mediate, the litigants, relatives and grass-roots organizations are more intimate with the parties, and the parties are more trustworthy, so that they can do the work of the parties and make the parties easy to accept mediation, which has a good effect. .
The mediation links criminal responsibility and civil liability as an important means of balancing the interests of the parties. In judicial practice, the private prosecution case of the private prosecution case is designed to use the penalty to defend the accused and realize its financial compensation. As for whether the defendant must be punished, it is not urgent to pursue it. In the mediation of the case, the defendant should force the plaintiff to actively perform the civil liability in the so-called “pressing the law” and seek the understanding of the private prosecutor to promote the mediation success.
In mediation, focus on resolving the root causes of the cases that arise between the parties. In some private prosecution cases, the contradiction between the two sides has existed for a long time, and finally the case is triggered by intensification. In mediation, the focus is on resolving the root causes of the cases between the two parties, so that the mediation can proceed smoothly. If the root causes of contradictions cannot be resolved during the handling of the case, it will be difficult to mediate, and even if it is superficially mediated, there will be disputes. Therefore, many courts rely on grassroots organizations and government departments to mediate such cases, first properly resolve the root causes of disputes, and smoothly mediate cases, which is conducive to calming contradictions and maintaining stability. For example, Zhang’s intentional injury case was tried by the Qianjiang District Court. Zhang’s college students were sentenced to penalties in accordance with the law because of the long-term disputes in the neighborhood during the winter vacation. However, the court considered Zhang’s poverty, and Zhang’s only one university student is currently the only student of Zhang’s family. If the sentence is punishable by Zhang for a lifetime, the judges of the collegiate bench will work hard, and even the New Year’s Eve will pass. The local residents' committee repeatedly gave the private prosecutor work, and finally the private prosecutor withdrew the private prosecution and closed the case.
2. Problems and difficulties in the operation of the mediation system for criminal cases
In the current court mediation work, which has received increasing attention, the people's courts have seen the incomparable superiority of mediation based on pragmatism. First of all, mediation can resolve disputes satisfactorily and economically, and achieve the phenomenon of litigation, reduction of protests, retrials, appeals, and stalking, alleviating litigation and reducing costs. Second, mediation agreements are based on consensus and are more likely to be consciously performed by the parties. Avoid implementation difficulties; again, from litigation as a whole, it is conducive to improving litigation efficiency; finally, mediation can reduce confrontation, and help to maintain the long-term interests and friendly relations of the parties in the settlement of disputes, so as to achieve good social effects and achieve stable maintenance. Political function. Therefore, driven by such a strong interest, the court only pursues the result of mediation, while ignoring the legitimacy of mediation, mediation becomes the purpose of trial work. In addition, since mediation is conducive to social stability, the court should focus on mediating this wrong logic, making judicial policy over-emphasizing the court's stable political function and affecting the rationality of court mediation.
To this end, the issue of examining the court mediation system must be based on a scientific judgment position and standards. Our position is how to use limited judicial resources to maximize the public interest of the society. At the same time, the implementation of any system requires cost and cost. How can we maintain the properness of the program and the efficiency of justice when we give full play to the advantages of mediation? . As far as the fairness and efficiency of mediation in criminal prosecution cases is concerned, on the one hand, from the perspective of the overall operation of the trial mechanism, the application of mediation can reduce the litigation process, avoid unnecessary meaningless protests and entanglement, and can save litigation costs and Judging resources, however, in the process of the first trial of the private prosecution, the application of mediation may not be able to improve the efficiency of the trial. It has also been found from the survey that the total number of cases closed is generally inversely proportional to the proportion of mediation, and the time spent on mediation is always more than the time of judgment. In addition, the effective application of mediation requires a higher level of judges' comprehensive requirements, more time and energy than judgments, and makes judges indulge in cumbersome mediation matters. At the same time, a judge with higher legal standards may not necessarily Suitable for mediation work. The current situation of the grassroots courts with many people and fewer people will make it difficult to use the trial resources effectively because of excessive emphasis on mediation. Based on this position, the problems and difficulties in mediating criminal cases in this investigation are summarized as follows:
Replacing the trial procedure with a mediation program objectively condone the misconduct of certain judges in violation of the formula, so that the statutory procedures are ineffective, fundamentally jeopardizing substantive justice.
The mediation program and the trial program are two different programs. From the point of view of the requirements, the mediation procedure is relatively simple. It can be presided over by the judges. It can also be presided over by the collegial panel and conducted as far as possible on the spot. The parties and witnesses can be notified in a simple manner. On the basis of the fact that the facts are basically clear, as long as the parties voluntarily and the mediation agreement is legal, there is no special program requirement in the law. From the scope of application, the scope of mediation of criminal cases in China is broad, and it is stipulated that mediation can not resist the lawsuit. This undoubtedly provides great convenience for judges to avoid strict and specific trial procedures. These characteristics of mediation itself can give judges the difficulty of making difficult judgments and less risk when dealing with private prosecution cases. Due to the consideration of their own interests, some judges tend to choose quick, labor-saving, and low-risk mediation, while avoiding time-consuming, laborious, and risky judgments. This kind of mediation preference of judges makes mediation still dominate in practice. Some cases that should be applied to the trial procedure are replaced by mediation procedures, which make the state of operation strictly following the rules of the program mutated, ultimately jeopardizing substantive justice. .
Replacing "finding the truth" with "and mud" creates a long-term and deep harm to the rule of law.
Due to the limitations of the criminal prosecution case mediation system, it determines that it does not have the function of ascertaining facts. Judging from the situation of this investigation, there are a large number of private prosecution cases, which are forced to mediate and settle the case without the court finding out the truth. The basic approach is to work with the mud, to make compromises, not to review and judge the evidence, but to "do work" and "justify" to both parties. Therefore, the result of the mediation is not a "solving" dispute, but actually a "resolving" dispute. As long as the dispute does not exist, the mediation achieves the purpose, regardless of whether the rights and obligations between the parties are understood. In doing so, it seems that a large number of disputes have been resolved through mediation in a voluntary and autonomous manner. In fact, both the protection of the rights of the parties and the sanctions against the crimes are weak, and the exercise of the litigant rights of the parties is not beneficial. What is more serious is that it ultimately damages the trust of the parties to the court, thus forming a long-term and deep harm to the rule of law.
The contradiction between compulsory and voluntary makes the voluntary principle difficult to achieve.
"Voluntary" reflects the essential nature of mediation in criminal private prosecution cases. The substantive difference between resolving disputes through mediation and resolving disputes by means of judgment is that the former is an agreement reached voluntarily by the parties, and the latter is a mandatory settlement of the court. Mediation is based on voluntariness; judgments are characterized by coercion. They were originally different ways of resolving disputes. The Criminal Procedure Law of China combined the two, making it difficult to implement the voluntary principle. Because in this mode of litigation, the judge has a dual identity: on the one hand, he is the mediator. As a mediator, he can only help the parties to clarify the facts of the dispute, conduct persuasion education, to soften each other's opposing sentiments, to resolve the differences between the two parties, to guide the parties to negotiate a solution to the dispute or to prompt the parties to resolve the dispute; Help the parties reach a mediation agreement; on the other hand, he is the commander of the lawsuit and the referee of the case. He is dominant in the criminal legal relationship with the parties. Because of this dual identity of the judge, there will be a lot of pressure on the minds of the parties: If the mediation plan is denied, will it leave a bad impression on the judges? Will there be any suspicion of denying the authority of the judge? Will it suffer losses during the trial? In this way, the parties will have such involuntary concerns on the issue of mediation, and may affect other independent decisions. What is more serious is that since the judges presided over the mediation process, a "preconceived opinion" has been formed. If one party does not accept the mediation result, he may subjectively believe that the facts are clear and there is no need to continue the trial. Instead of trial, mediation may be passed through the court during the trial process. The evidence is not carefully reviewed and judged. In fact, the previous mediation plan is used as the content of the judgment. This potential and actual pressure from judges is quite detrimental to the parties’ full and autonomous participation in the mediation process, and the voluntary principle cannot be achieved.
The original court mediation system conflicted with the current reform of the trial mode, which seriously hindered the reform.
One of the core contents of the reform of criminal trial mode is to emphasize "party law" and gradually abolish the "external investigation power" of judges. In this way, the division of labor between the judge and the party is reversed. The parties become the main body of the program. The basic motivation for the program is to convince the judge to make a conclusion that is beneficial to him. That is to say, the burden of proof logically requires the judgment to become the target of the prescribed program. The mediation system of the private prosecution case, the judge's purpose is to end the lawsuit by obtaining the parties' reconciliation and agreement. To this end, while convincing the parties to educate, it is necessary for the judge to investigate and collect evidence and provide a correct mediation plan. Only when it is unavoidable can the judgment be made. Obviously, such a situation makes judges naturally the mainstay of the development of the program, which runs counter to the goal of “reducing and weakening the power of judges, expanding and enhancing the permissions of the parties”. The reform of the criminal trial mode also requires the court to implement the open trial system, implement the independent trial and responsibility system of judges, and strengthen the democratic supervision of trial activities. The program structure of the private prosecution case is mainly the active investigation of the judges and the activities of the persuasion of the educators. These activities can be carried out outside the court or in the presence of only one party. This makes the litigation mediation lack effective supervision, and it also violates the principle of open trial. The judge's independent trial and accountability system refers to the system in which the judge has the power to independently hear and judge the case, and at the same time bear full responsibility for his own incorrect or wrong referee. However, according to China's criminal procedure law, there is no protest. After the legal effect of the mediation book, it is neither within the scope of the president and the higher court to conduct the retrial according to the trial supervision program, nor is it within the scope of the prosecution's protest. The situation of retrial is rare. Therefore, mediation is a low-risk way of handling cases for judges. Moreover, mediation has considerable flexibility both in the application of the program law and in the application of substantive law. In this case, the phenomenon that the mediation agreement is obviously illegal is rare, and the violation of the voluntary principle forces the lawful and reasonable. The so-called implicit violation of a party's concessions has occurred, but because of the hidden nature of implicit violations, coupled with the lack of effective supervision, the accountability of judges is often impossible to implement. All of the above are undoubtedly severely restricting the reform of criminal trial methods.
3. Reflections on the mediation system of criminal private prosecution cases
Judging from the development trend of the criminal litigation system in the modern world, in order to overcome the shortcomings of delay in litigation, lack of legal profession, and high litigation costs, mediation is a litigation mechanism for solving minor criminal disputes, whether in the civil law system or the common law system; Whether in the Western countries or the Eastern countries; both at the legislative level and at the judicial level, they have received unprecedented attention, and the improvement of the mediation system is also in the process of maturity. In the United States, which is known as the “king of the lawsuit”, a large number of minor criminal cases have been resolved through mediation procedures. Only a very small number of cases have entered the court stage; minor criminal cases settled by Japan through mediation accounted for 53% to 54% of the total number of applications. The number of cases resolved through mediation reached 35%. Although the mediation procedures in different countries are not identical, it is the intention of the establishment of a mediation system by national laws to resolve disputes through negotiation, reduce the litigation costs of the parties and reduce the excessive burden of court cases. At the same time, the court mediation system has the characteristics of combining extra-suit settlement and trial advantage. Rational parties can actively seek a balance between judicial justice and interests to meet their own needs to the utmost extent. With the acceleration of the pace of social life, the simple external settlement of litigation and the value of pure civil litigation can not meet the diversified needs of the society for the judicial relief system. In addition, due to the improvement of the concept of personal freedom, I hope to actively participate in the resolution of disputes through the process of litigation. Court mediation is the product of reconciling out-of-litigation settlements with the system of trials in civil proceedings, while satisfying the need for people to integrate mediation and trial advantages. Under this model, the parties can find a balance between program security and effectiveness, fair evaluation and interest coordination to maximize their own requirements. It can be said that the dilemma of the court's manpower shortage and the diversified demand for dispute resolution by both parties are the root of the court mediation.
Principles to be followed in mediation of criminal cases
1. Identify the facts and clarify the principle of right and wrong
Mediation is not "and muddy". The mediation of private prosecution cases must be carried out on the basis of clear and unclear facts. Only when the facts are ascertained, the right and wrong are clarified, the responsibilities of the parties are clarified, and the parties can be justified and targeted. Conduct education and counseling, correctly apply laws and policies, and accurately handle cases.
Some people think that mediation emphasizes the consent of the parties. Some people are unwilling to disclose the true causes and facts of the disputes. Some of the facts of the disputes are more clearly understood. The more clear the right and wrong, the more likely it is to provoke the dissatisfaction of a reasonable party. People, on the other hand, increase the difficulty of mediation. It is considered that as long as the parties voluntarily, whether the facts are clear and whether the responsibilities are clear, there is no practical significance. In this regard, we should make it clear that the basis of mediation is that the defendant or the responsible person recognizes the fault, raises awareness, apologizes the victim and obtains the consent of the victim, rather than unreasonable “reconciliation”. If the facts are unclear and the responsibility is unclear, On the basis of blind mediation, it is difficult to obtain the consent of the victim, mediation cannot be achieved, and this mediation also violates the fundamental spirit of the law.
2. Voluntary principle of both parties
First of all, whether mediation is applicable in the trial of criminal private prosecution cases must respect the will of the parties. Generally, an application can be made by a party to the people's court and the consent of the other party can be obtained. The court may also propose to the parties to mediate according to the specific circumstances of the case, and carry out the necessary persuasion for this purpose, but such advice and persuasion must be based on the consent of the parties. If the parties strongly disagree with the mediation, the people's court No mediation is allowed.
Secondly, the voluntary principle of mediation is also reflected in whether the mediation can reach an agreement and the content of the agreement must be the result of voluntary negotiation by the parties and is the true meaning of the parties. The judges may also propose appropriate schemes in mediation, and persuade and persuade the parties, or they may pass the proposal made by one of the parties to the other party and solicit their opinions. However, this does not mean that the judges can impose their opinions on others, and they cannot force one party to accept the other's opinions. In the practice of trials, some insist on the practice of “hard mediation”, that is, the arrest of the accused who is at fault, and other enforcement measures, such as “not accepting the other party’s opinion will be sentenced” to force them to accept mediation; The private prosecutor, in order to "reject the prosecution" and other key points, forced one party to accept the other party's mediation plan. We believe that such an approach is contrary to the basic principles of mediation and is wrong.
3. The principle of mediation must be legal and must not harm the legitimate rights and interests of the state, the collective and the individual citizens.
The mediation of private prosecution cases is a trial activity of the people's court and must be carried out in strict accordance with the law. In mediation, the principle of openness according to law should be followed to protect the litigant rights and legitimate rights and interests of the parties and to abide by the necessary procedures. After the mediation is established, a criminal incidental civil mediation or written mediation agreement shall be made in accordance with the law or the requirements of the parties.
The content of mediation must comply with the provisions of the law and relevant policies, and must not infringe the legitimate rights and interests of the state, the collective and others. Since the consequence of mediation in a private prosecution case is that the victim waives the request for criminal responsibility of the accused, it is often a unilateral concession. Therefore, it is necessary to pay special attention to the severity of the accused's criminal circumstances, the size of social harm and whether criminal responsibility must be investigated, to prevent improper mediation, and to enable criminals who should be investigated for criminal responsibility to evade punishment by law.
4. Implement the principle of who advocates the permit. Evidence is the basis for finding out the facts. In the mediation of private prosecution cases, it should insist on who advocates who gives evidence. Where the party is unable to obtain and provide evidence for objective reasons and applies to the people's court for evidence, the people's court confirms that it is necessary and may obtain it according to law.
5. Refer to the principle of civil procedure law. When the people's courts conduct mediation in a private prosecution case and encounter problems not covered by the Criminal Procedure Law, they may refer to the provisions of the Civil Procedure Law. Two points should be noted: first, the reference is limited to the problem of the program; second, the reference is not equal to the application, and the provisions of the Civil Procedure Law are not completely applied to the criminal prosecution case.
Implementation of criminal mediation
1. Organization of mediation
According to the provisions of the Criminal Procedure Law, the mediation of criminal private prosecution cases by the people's courts is generally conducted by a collegial panel or a single judge. A case in which a judge presides over mediation generally refers to a case where the facts are clear, the evidence is sufficient, and the parties have little controversy and the social influence is small. The cases in which the collegial panel presides over mediation are generally those cases where the case is more complicated, the parties are more controversial and the public is concerned.
2, the steps of mediation
The key to the mediation activities of private prosecution cases is to carry out in-depth ideological education and diversion work for the parties. Therefore, it is necessary to proceed from the purpose of promoting the unity of the parties, patiently and meticulously, in order to receive better results. In practice, the following steps are generally taken:
On the basis of ascertaining the facts of the case and distinguishing the responsibilities, try to understand the true thoughts and mutual relations of the parties in order to understand the necessity and possibility of mediation.
When conducting criminal mediation, you should first grasp the psychological situation of both parties. In judicial practice, after the victim is killed, the main psychology is: anger, revenge, fear, depression, despair, compensation psychology, request for legal protection psychology, resistance and anxiety. Victims with the first five kinds of psychology have strong confrontational feelings with the accused, and the difficulty of mediation is also large. The victims of the latter five psychological states are more likely to accept mediation. After the crime, the accused often has the following psychology: penitence, deny, antisocial psychology and anger. The first psychological defendant is easy to accept mediation, while in the latter three cases, the defendant is not easy to accept mediation. Understanding the psychological state of the client can help to understand whether the case is suitable for mediation and the mode of mediation and the prospects for mediation. Different mediation methods should be adopted for parties with different mental states. For those who have greater opposition, the catharsis method can be used to let the inner resentment be vented, to stabilize their emotions and to deal with problems rationally. At the same time, it allows them to fully express their ideas, and then conduct targeted legal and policy education, and gradually make them accept mediation. For those who have repudiation, they can expose their repudiation and sophistry on the basis of sufficient evidence to eliminate their luck. For the parties who ask for the price of the sky, we must use the law to regulate the illegal requirements of the parties and guide the parties to understand the legitimacy and rationality.
In response to the actual situation of the case, the two parties will be educated in a focused manner, and they will be publicized to promote their laws and policies so that they can recognize their faults and responsibilities and lay the foundation for mediation.
Due to the different responsibilities and litigation status of the parties, the content of their education should be different: the accused who are at fault are mainly through law, policy and non-education, so that they can recognize their sins and correct their attitudes. Awakening; for the private prosecutor, it is mainly through persuasion, eliminating the opposite emotions, making it start from the overall situation of long-term harmony, resentment and revenge, unity and good. For those parties who are both at fault, they should be guided to objectively clarify the case and face their own responsibilities, and each should do more self-criticism, thereby diluting the contradictions, alleviating the opposition, and creating a calm and objective atmosphere.
On the basis of the parties' recognition of their respective responsibilities, the responsible defendant should apologize to the other party and bear the economic losses caused by the infringement to the other party in order to obtain the understanding of the other party. If both parties are at fault, they should be criticized accordingly and subject to corresponding responsibilities according to the actual situation.
In the mediation of a private prosecution case, the damages should be settled. The ability to properly resolve damages often directly affects the success of mediation. Only if a faulty party compensates the other party’s losses, can the other party’s understanding be obtained and the basis for mediation established. Otherwise, the victim will think that the other party has not accepted the sincerity of the mistake and does not agree to mediation. At the same time, other related issues should be resolved. For example, in cases of insults and defamation, the facts can be clarified for the victims and the reputation can be restored within a certain scope. For the bigamy cases, the illegal marriage relationship of the accused should be announced.
3. Mediation was established
After the parties have negotiated, the private prosecutor waives the criminal responsibility of the defendant and reaches an agreement on other matters, which is the establishment of mediation. After the mediation is established, the people's court shall make a transcript of the mediation according to law, and the legal effect shall be made after the signature of both parties. For cases that cannot be delivered at one time and need to be implemented in stages after the implementation or require long-term supervision by the relevant departments and relatives and friends, a mediation book may also be produced to determine the rights and obligations of the parties for the parties and relevant departments to act as the basis for supervision and enforcement. The criminal mediation book of the people's court shall come into effect after being served on the parties.
Problems in criminal mediation
In criminal mediation, the following relationships should be handled correctly:
1. The people's court should correctly handle the relationship between mediation and judgment when handling criminal cases of criminal prosecution.
The people's courts must pay attention to the principle of mediation in the trial of criminal cases, and should try to mediate in cases that can be mediated. According to the practice of trials, we believe that cases that can be conciled generally refer to cases of minor injuries, insults, defamation, violent interference in marriage, cases of abuse, and abandonment. For cases in which the circumstances of the crime are not serious, the parties are neighbors' relatives, the contradictions between the two parties are not deep, and the defendant can repent in good faith, and mediation can be conducted. In the case of bigamy, the crime is less serious, and after education, there is repentance. The defendant, in the case of obtaining the understanding of the private prosecutor, can also conduct mediation from the maintenance of his marriage and family relationship; as for the destruction of military marriage cases, such crimes not only infringe the legitimate rights and interests of the victims, but also seriously infringe on the state and society. Benefits, therefore, mediation is generally not applicable. Since the mediation is established, some defendants who have objectively or may constitute a crime will be exempted from criminal punishment. Therefore, it is necessary to be cautious when applying mediation, and mediation cannot be applied without distinction.
2. Correctly handle the relationship between education and punishment
In the mediation of private prosecution cases, education and guidance are carried out from beginning to end. It can be said that in addition to the objective factors such as the nature of the case, the plot, and the consequences of the harm, the effect of education guidance can often determine the success or failure of mediation. Therefore, we must pay attention to the root causes of the parties' conflicts. Deep people analyze the crux of their thoughts, and some of them are free to criticize and persuade the persuasion work, and conduct education and guidance throughout the examination and filing, investigation and evidence collection, substantive trials, and handling of incidental civil actions. The whole process. Pay attention to the working methods, take advantage of the situation, adhere to patience and meticulousness, force the simple and rude, strive to ease the intensified contradictions, and eliminate the strong opposition, thus promoting the establishment of mediation.
3. Correctly handle the relationship between principle and flexibility
The mediation agreement, although expressed by both parties, must be approved by the people's court, and the content of the mediation must comply with laws and policies. In mediation, we must strictly abide by the law and adhere to the principle. We must not allow the accused who must be convicted and punished to evade legal sanctions, nor can they over-require the high demands of the private prosecution; the violation of the law, the evasion of the law and the unfair mediation Conditions should not be supported, the content is ambiguous, and provisions that may be ambiguous should be clarified. The parties may no longer personally agree on the same content in a manner that is inconsistent with the mediation to circumvent the court's review.
Because the law allows the private prosecutor to dispose of his own entity and litigation rights within a certain scope, in the mediation, specific cases should be treated in detail, pay attention to working methods, fully consider the actual situation of both parties, and allow and encourage parties to seek common ground while reserving differences on non-principle issues. In the scope of laws and policies, appropriate concessions should be made to the conditions of mediation, so that it is reasonable, beneficial, and knotty.
４、正確處理人民法院為主和爭取有關人員參加的關系
自訴案件調解不同於自行和解，必須由法院的審判人員主持進行，而不能由當事人自發地協商。當事人的調解請求，必須向審判人員提出，調解內容也必須經審判人員審查。在調解中，審判人員應牢牢把握工作的主動權，積極地開展工作，努力溝通雙方當事人的思想。同時，法院也應盡力爭取外界人員協助開展調解工作。實踐證明，由當事人的親友、單位或基層組織負責人協助調解，對當事人進行教育，共同協商調解條件，往往比僅由審判人員調解的效果要好。

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