First, the causes of current social contradictions and disputes
China's system transformation from planned economy to market economy has promoted the rapid development of economy and society, brought about profound changes in ideological, economic and political fields, brought about fluctuations in people's ideological mood and great changes in the interest pattern, and all kinds of social contradictions have entered a period of high incidence. The prominence of social contradictions has both objective and subjective factors, both economic and political, as well as domestic and international factors, which are the result of the interaction of various factors.
No matter what kind of society or era, subjective factors are the direct causes of social contradictions and disputes. For example, personal possessiveness of material and interests; Personal extreme preference for things; The unsatisfied needs of changing individuals; The balance of social morality is unbalanced; Do not suffer from poverty but suffer from inequality; Competitive; Emotional likes and dislikes and so on. Objective factors are the root causes of social contradictions and disputes, such as unbalanced economic and social development; Uneven social distribution; The disjointed changes of old and new systems lead to conflicts of interest among subjects, and so on.
(A) unbalanced economic and social development
With the deepening of reform and opening up, people's living standards have been continuously improved as a whole. However, the development and development of regional advantages, potential advantages and advantages of central cities. , leading to a growing gap between the rich and the poor between regions, between urban and rural areas, and between all walks of life. Many people don't look for reasons from both subjective and objective aspects, "not suffering from poverty but suffering from inequality", which leads to psychological imbalance and out of control, and finally leads to contradictions and disputes.
(B) the contradiction between population resources and natural resources
China is a country with a large population and a large agricultural country. Agricultural population accounts for 70% of the total population. In the possession of social resources, social welfare and other public goods, the urban population itself enjoys more preferential treatment than the rural population, while China's population and family planning policies, fertility awareness, urban-rural contradictions and so on are also very prominent. In the aspect of population proportion contradiction, at present, a couple in rural areas generally have more than two children, while urban couples only have 1 child, and a few urban couples are still unwilling to have children, resulting in an increasing proportion of urban and rural population; At the same time, the comprehensive popularization of agricultural science and technology and the lower and lower exploitation potential of land resources and natural resources have led to the continuous shrinkage of farmers' per capita income, a large surplus of rural labor force, a sharp increase in interest conflicts centered on employment and income, a sharp increase in contradictions among individuals, groups, industries, families, communities, urban and rural areas, and regions, and the increasingly complex nature of disputes.
(C) the transformation of the old and new systems, the defects and out-of-control of the social control system
Any system reform will lead to profound changes in ideology, economy, system, politics and each other, especially the in-depth development of the current market economy, the emergence of multiple stakeholders and the coexistence of various economic ownership systems, coupled with the fact that social integrity has not yet been established, the legal system is not perfect, the market order is not standardized, and various inherent drawbacks have been exposed one after another. For example, the medical order, on the one hand, the state spends a lot of human and financial resources to rectify the order, on the other hand, the medical price remains high, and various "hidden rules" involving the medical and health industry are repeatedly banned under the drive of interests, and disputes between doctors and patients are frequent.
Second, the characteristics of current social contradictions and disputes
Judging from the overall situation of current social contradictions and disputes, the number is generally on the rise and has the following characteristics:
(A) the main diversification
With the new economic system and order breaking the old economic model and regional blockade, a competitive mechanism has been established and various stakeholders have emerged. With the activities of various subjects, contradictions and disputes in economic, political and ideological fields are increasing day by day. It occurs not only among citizens, but also among citizens, legal persons, unincorporated groups and organizations, and even between the government, cadres and the masses. Under the impetus of economic development, deepening reform and top-down rule of law, contradictions and disputes at the grassroots level are increasing day by day. From the perspective of the subject of disputes, the subject of grassroots contradictions and disputes is developing in a diversified direction. Taking farmers as the main body of society as an example, with the differentiation of classes and groups, farmers in the traditional definition are divided into agricultural laborers, migrant workers, peasant intellectuals, individual workers and self-employed, private entrepreneurs, township managers and rural managers.
(B) the content is complex
Due to the imbalance and difference of individual economic interests, contradictions and disputes have been replaced by "one cause and one effect" or "many causes and many effects" [③]. Looking at the handling of every contradiction and dispute, we will find that the causes of various contradictions and disputes are diverse and intertwined. There are often historical factors, policy factors, economic interests factors, and improper handling methods; On the one hand, the masses demand rationality, on the other hand, they don't understand the policies of the party and the state, and they demand too much, regardless of the overall situation. Some are intertwined with public security, civil and criminal cases, some are intertwined with economic, administrative and political factors, and some are not only a social phenomenon, but also an unstable factor, such as family planning, land acquisition and demolition, and grassroots elections. In the process of contradictions and disputes, many other unstable factors are involved, and the consequences are not related to the interests of one or a few people, but to the interests of many parties, which increases the complexity of current contradictions and disputes.
(3) diversification of types.
Under the condition of market economy, the types of disputes increase. Cross-regional and cross-industry disputes, labor disputes, commodity management, credit and investment disputes, enterprise partnership, subcontracting, auction, merger and bankruptcy disputes, land acquisition, allocation and circulation disputes, production safety disputes, marriage and property disputes, preferential treatment and relief disputes, and maintenance disputes are constantly emerging, with various types.
(D) Difficulties in mediation
Due to the frequent social contradictions and disputes with complicated causes, the reasonable demands of the subject are often intertwined with the unreasonable and illegal expressions of the demands of a few people, and the demands of economic interests are intertwined with the demands of safeguarding democratic rights, which makes it difficult to mediate contradictions and disputes. First of all, it is difficult to determine the nature of the dispute. Only with certain knowledge of culture, society, economy, politics, law and policy, and familiar with policies and regulations between stages, can we correctly identify the content and nature of disputes; Second, the dispute is complex and involves a wide range, and it is difficult to be effective by one department alone. Some disputes need the coordination of multiple departments. In particular, the spontaneous behavior of the masses is used by people with ulterior motives to confuse right and wrong, which not only leads to difficulties in mediation, but also accelerates the intensification and deterioration of contradictions and disputes, affects and threatens people's production, life and work, and even easily leads to vicious incidents.
Third, the status quo of the mediation mechanism of contradictions and disputes
(1) Judging from the organization, personnel, funds, case handling mechanism, investigation and practical work, the current establishment of social contradictions and disputes mediation institutions is basically based on the grass-roots organizations of the Party, with the leading group in charge as the leader, the leaders in charge as the specific responsible persons, and each department as the member units. Each department has an office, which holds meetings at different levels, issues documents, supervises implementation and makes quantitative assessment. On the surface, leadership, organization, personnel, supervision and assessment are in place, but in essence, they have little effect. First, there is a shortage of staff. Most of the staff from top to bottom are part-time, and few people, especially grass-roots organizations, take the mediation of contradictions and disputes as their job. According to the survey, a considerable number of judicial offices, conflict mediation centers, political and legal offices, and comprehensive management offices are arranged in a long list, but most of them are part-time employees or the elderly, the weak, the sick and the disabled, except for the judicial assistants who are working in the organization; Second, the implementation of the work is not in place, and there are many meeting materials, documents and inspection materials, but there are not many files that can really be closed. If the number of cases closed is compared with the number of disputes within the jurisdiction, the gap is even greater. Third, there are no fewer intermediary organizations than grassroots organizations. Intermediary organizations such as law firms, arbitration institutions, legal aid centers, and legal service centers are basically established at or above the county level and work regularly or on invitation. The resources are not well integrated and have not yet formed a joint force, and the legal service is obviously out of touch with the mediation of social contradictions and disputes; Fourth, there is no guarantee of working funds. Except for the people's courts, mediation of social contradictions and disputes is free according to laws and regulations. But every time you mediate a dispute, you don't need to collect evidence or travel. It is rare to convene mediation in the office to handle things well. More often, disputes have not been successfully mediated for several years or more, and judicial administrative departments and other units have no funds for people's mediation, which is even more difficult to include in the budget.
(2) Judging from the dilemma of mediation of contradictions and disputes, one is the dilemma of litigation mediation. On the one hand, mediation organizations at all levels at the grass-roots level are part-time, on the other hand, they can't charge any fees according to regulations, and they have to work hard and pay their travel expenses. Intermediary organizations are unprofitable and do not extend to the grassroots. It leads to a large backlog of litigation and non-litigation cases in people's courts, while intermediary organizations are ignored, and civil mediation is weakening day by day, or between grassroots mediation organizations and courts. Second, the limitations of non-litigation mediation. From the perspective of non-litigation dispute resolution ability, non-litigation mediation plays an important role in solving ordinary disputes. The masses are increasingly inseparable from non-litigation mediation, but they are unable to mediate major contradictions and disputes that plague the party and the government. The reason is that grass-roots mediation organizations can only implement policies but not formulate policies, and more than 95% of the major contradictions and disputes that plague the party and the government are due to inconsistent policies or non-current policies. According to statistics from relevant departments, at the same time, non-litigation mediation based on the principle of mutual understanding and mutual accommodation and on the premise of consultation and reconciliation cannot achieve the unity of autonomy and administration, let alone be authoritative and final. Third, the mediation mechanism is out of touch. Although litigation mediation mechanism, arbitration mechanism, dispute handling mechanism of administrative organs, and petition system all constitute a diversified mediation system for social contradictions and disputes, the effectiveness of dispute resolution is not high because of unreasonable structural layout, compartmentalization and different application basis, which is inconsistent with the value goals pursued by modern society, such as efficiency, autonomy, self-discipline and flexibility, especially involving problems such as policy disconnection and out-of-control administrative ability. Therefore, it is an urgent task for us to establish and improve a scientific mediation mechanism for social contradictions and disputes.
Four, establish and improve the mechanism of mediation of contradictions and disputes.
Where there is society, there are disputes, and disputes are inevitable. For a society, what is important is not how to eliminate or restrain disputes, but how to establish an effective mechanism for resolving contradictions and disputes, so as to eliminate its disadvantages, preserve its advantages, reduce the risks and harms brought by disputes to society, minimize the cost of dispute resolution, and achieve the best effect of dispute resolution.
Solving social contradictions and disputes, understanding the social background of contradictions and disputes, and being familiar with laws, regulations and policies are the basis, mainly solving the problems of how to identify the nature of contradictions and disputes and how to choose the starting point; Establishing a perfect mediation mechanism for social contradictions and disputes is a key link, which solves the problem of how to deal with whom. At present, people's mediation, administrative mediation, arbitration and litigation have taken shape in China. However, under the current situation that contradictions and disputes are diversified, complicated and difficult, it is necessary to establish and improve a diversified contradiction and dispute resolution mechanism based on grassroots, people's mediation as the foundation and link, supported by administrative mediation, judicial mediation and other forms of mediation, which is coordinated, benign, interactive, complementary in functions and connected in procedures.
(A) in-depth study and improvement of the people's mediation system
China is a civilized country with a history of thousands of years. In particular, Confucian culture advocates harmony as the most precious, beautiful and beautiful concept, which has an important position and influence in Mandarin Chinese. For most ordinary people, after a dispute occurs, they often hope that the dispute can be resolved quickly without harming peace, and resorting to the court is usually regarded as a sign of the extreme breakdown of relations. People's mediation should be a unique system in China. Its advantages lie in sound organization, taking root at the grassroots level, knowing the truth, being responsive, and having a solid mass base, which is irreplaceable. His role is to strengthen the unity among the people, promote the construction of spiritual civilization and close the relationship between the party and the masses. Practice has proved that people's mediation conforms to China's national conditions and should be further strengthened and improved.
Contradictions and disputes occur among the broad masses and at the grassroots level. The construction of people's mediation organizations and the establishment of institutions should take the grassroots as the unit and the village (community) as the frontier. In view of the fact that villages and towns (communities) have fewer people and more things, and the shortage of personnel is prominent, it is the premise to improve the construction of grass-roots organizations, integrate human resources and ensure that someone is in charge. Actively guide relevant emerging social organizations to carry out people's mediation work, and promote people's mediation organizations to extend to industries and fields with frequent contradictions and disputes such as insurance, finance, construction and urban demolition, land transfer, and industrial and commercial transactions. At the same time, governments at all levels should also increase their support for people's mediation organizations, not only to strengthen the training of people's mediators, but also to comprehensively improve their own quality; Mediation funds should also be included in the government budget, and special funds should be allocated to ensure the smooth development of people's mediation work.
(two) to provide legal and institutional protection for people's mediation work.
Strengthen legislation to further clarify the nature of the people's mediation system. At present, China's Constitution, Civil Procedure Law and other laws and regulations have clear provisions on people's mediation, but they are general and principled, lacking clear provisions on the scope of mediation, mediation procedures, the effectiveness of mediation agreements, and financial guarantee, which is not feasible in practical work. Therefore, we should speed up the legislative pace of people's mediation, further clarify the nature, status, tasks and policies of people's mediation, clarify the organizational structure of people's mediation committees, clarify the basic procedures and work norms of people's mediation, and support measures such as mediators' work subsidies, so that people's mediation can play a greater role. At the same time, legislation should keep an open structure for the scope of accepting cases by people's mediation, and people's mediation should actively participate in resolving various social contradictions (including minor criminal cases).
At present, in the practice of strengthening the comprehensive management of social security and maintaining social stability, China has explored many effective ways to resolve contradictions and disputes. However, different foundations and practices have affected the legitimacy and authority of dispute settlement to a certain extent, so it is urgent to summarize and improve it from the theoretical level and upgrade successful practices and experiences into laws or rules. First, the main body of social contradictions and disputes is at the grassroots level, and mediation should be given priority to at the grassroots level, rather than adopting a top-down solution. Second, establish and improve conflict investigation, information communication, prevention, emergency response and accountability mechanisms to ensure smooth information. Correctly use economic, administrative, legal and emotional means to properly handle contradictions among the people. Use communication, coordination, consultation, departmental diversion, letters and visits, etc. to do more ideological work, eliminate hidden dangers of contradictions and settle contradictions and disputes ideologically and emotionally. Especially sharp contradictions and disputes, we should take into account the overall situation of stability and unity, coordinate relevant departments to resolve contradictions in time, and in principle, we should not use coercive force and should not handle them in the form of litigation to ensure that contradictions and disputes are controlled. We should formulate a set of non-litigation dispute mediation rules system to ensure the fairness of dispute mediation procedures and promote social fairness and justice. Further guide citizens to form a correct and rational concept of the rule of law, seek legal aid and uphold justice according to law, and serve the construction of a society ruled by law and a harmonious society.
(3) Improve the diversified and multi-channel dispute mediation mechanism.
Practice has proved that mediation and litigation are not the only ways to solve contradictions, but arbitration, legal services, legal aid and separate handling by petition departments are all effective ways to solve contradictions. The key is to sum up experience seriously and straighten out the relationship so that all kinds of contradictions and disputes can be solved scientifically and orderly.
Construct a diversified and multi-channel mechanism for mediating contradictions and disputes. First of all, we must ensure that the intermediary organizations are set up reasonably, and contradictions and disputes occur at any time and are handled at any time. Therefore, institutions should be established in communities (towns), the original places of contradictions and disputes, and organizations and institutions should be established among the people; Secondly, it is necessary to straighten out the mediation relationship of departmental contradictions and disputes, rationally handle contradictions and disputes, overcome arbitrariness and temporality, enhance standardization, ensure that the masses have rules to follow in resolving disputes, have clear mediation responsibilities of institutions, and have orderly connection between departments, so as to provide standardized mediation services for society and the public to the maximum extent; Third, we should highlight the ultimate power of dispute resolution. The people's court should be based on non-litigation mediation, which embodies the final settlement right, serious legal dignity and supreme authority based on facts, law as the criterion and coercive force as the backing.
(4) Strengthening the function of resolving administrative disputes.
Administrative organs have the unique advantages of professionalism, comprehensiveness, efficiency and initiative in dispute resolution, which is an indispensable link in diversified conflict resolution mechanisms. Comprehensively standardize and confirm the position and responsibilities of administrative organs and grass-roots governments in civil dispute resolution, distinguish them from civil dispute resolution mechanisms such as people's mediation, give full play to their unique functions, and make them an important part of diversified dispute resolution mechanisms. With the increase of employment disputes, land disputes, medical disputes, product quality disputes and other special disputes, professional administrative handling mechanism has become more and more important. For example, in solving the problem of wage arrears for migrant workers, the active intervention of the labor inspection department is far more efficient and economical than resorting to justice, and it has a better effect on safeguarding the interests and rights of migrant workers.
(5) Strengthen the guidance of the people's courts on people's mediation.
According to the Civil Procedure Law, the Organization Law of the People's Court, the Organization Regulations of the People's Mediation Committee and other laws and regulations, it is the legal duty of the people's court to guide the people's mediation work. From the perspective of judging cases by the court, supporting the handling of disputes involving people's mediation agreements according to law is the strong backing of people's mediation work. Therefore, people's mediation and trial work (mainly from the trial of civil and commercial cases, including litigation mediation) are interrelated, influential, exemplary and mutually promoting.
The people's court shall, in accordance with the Supreme People's Court's "Several Provisions on the Trial of Civil Cases Involving People's Mediation Agreements", establish a feedback system and a judicial suggestion system for the trial of civil cases involving people's mediation agreements, and strengthen case guidance. If the mediation agreement is changed, revoked or confirmed invalid by the people's court, the people's court may send the effective judgment document to the judicial administrative organ or the people's mediation committee. If it is found that the people's mediator violates the principle of voluntariness and forces the parties to reach a mediation agreement, it shall promptly put forward rectification suggestions to the judicial administrative organ or the people's mediation committee to ensure the improvement of the quality of the people's mediation agreement. At the same time, from the litigation legislation, people's mediation is set as the pre-litigation procedure of a certain kind of civil dispute, and the pre-trial mediation system is established. In other words, the solution of these cases is "pre-litigation mediation", and the parties need to apply for mediation before suing; If a lawsuit is brought directly to the people's court without applying for mediation, the people's court will not accept it, and inform the parties to apply to the people's mediation organization for mediation, or transfer the case to the relevant people's mediation organization for mediation ex officio. We must adhere to the principle of legality and voluntariness, convince people by reasoning and by law, and never give up any opportunity for mediation and settlement.
In a word, the key to the establishment and perfection of diversified dispute mediation and settlement mechanism is to realize the coordination of various dispute settlement institutions in the process of dispute settlement and form a reasonable connection between civil mediation, administrative dispute settlement and litigation [⑦]. In the process of restructuring the mediation system of social contradictions and disputes, it is an urgent need to further improve the unified, coordinated, benign interaction, complementary functions, program linkage and diversified and multi-channel operation system of social contradictions and disputes, which is based on grassroots mediation, with people's mediators and other mediation forces as the main body, coordinated and coordinated by administrative departments at all levels, and court litigation as the final ruling, and is also an inevitable requirement for building a society ruled by law and a harmonious society.