1, the effectiveness of the people's mediation agreement
Paragraph 2 of Article 16 of the Civil Procedure Law: "The People's Mediation Committee conducts mediation according to the law and the principle of voluntariness. The parties shall perform the agreement reached through mediation; If you are unwilling to mediate, mediation fails or you repent, you can bring a lawsuit to the people's court. "
Article 1 of the Supreme People's Court's Provisions on the Trial of Civil Cases Involving People's Mediation Agreements (Law Interpretation [2002] No.29): "A mediation agreement with civil rights and obligations reached through mediation by the People's Mediation Committee is signed or sealed by both parties and has the nature of a civil contract. The parties shall perform their obligations in accordance with the agreement and shall not change or terminate the mediation agreement without authorization. "
Article 2: "If one party brings a lawsuit to the people's court and requests the other party to perform the mediation agreement, the people's court shall accept it. If a party brings a lawsuit to the people's court, requesting to change or cancel the mediation agreement, or requesting to confirm that the mediation agreement is invalid, the people's court shall accept it. "
2, the effectiveness of the court mediation agreement
Article 89 of the Civil Procedure Law: "If an agreement is reached through mediation, the people's court shall make a mediation statement. ..... The conciliation statement shall have legal effect after being signed by both parties. " Article 9 1: "Before the mediation is served, if no agreement is reached through mediation or one party reneges, the people's court shall make a judgment in time."
Article 15 of the Supreme People's Court's Provisions on the Application of Summary Procedure in the Trial of Civil Cases (Law Interpretation [2003]15): "If an agreement is reached through mediation and both parties agree that the conciliation statement will take effect after being signed or sealed by both parties, the conciliation statement will take effect from the date of signing or sealing by both parties. ..... If the mediation agreement complies with the provisions of the preceding paragraph, the people's court shall make a separate civil mediation document. After the mediation agreement comes into effect, if one party refuses to perform it, the other party may apply for execution with the civil mediation. "
Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning Civil Mediation in People's Courts (Law Interpretation [2004]12): "If the parties who have neither rights nor obligations to the contents of the mediation book do not sign the mediation book, the validity of the mediation book will not be affected."
3, the effectiveness of the litigation settlement agreement
There is no provision on litigation reconciliation in the Civil Procedure Law.
Article 4 of "Provisions of the Supreme People's Court on Several Issues Concerning Civil Mediation by People's Courts" (Law Interpretation [2004]12): "If the parties reach a settlement agreement by themselves in the course of litigation, the people's court may, upon the application of the parties, confirm the settlement agreement according to law and make a conciliation statement."
4, the effectiveness of the implementation of the settlement agreement
Article 2 1 1 of the Civil Procedure Law: "In the course of execution, if both parties reach an agreement through self-reconciliation, the executor shall record the contents of the agreement in the record, which shall be signed or sealed by both parties. If one party fails to perform the settlement agreement, the people's court may resume the execution of the original invalid legal document upon the application of the other party. "
5, the effectiveness of the arbitration settlement agreement
Article 49 of the Arbitration Law: "After applying for arbitration, the parties may settle their disputes by themselves. If a settlement agreement is reached, the arbitration tribunal may be requested to make an award according to the settlement agreement, or the arbitration application may be withdrawn. " Article 50: "If the parties reach a settlement agreement and withdraw their application for arbitration, they may apply for arbitration according to the arbitration agreement."
6, the effectiveness of the arbitration mediation agreement
Article 5 1 of the Arbitration Law: "Article 51 Before making an award, the arbitration tribunal may conduct mediation first. If the parties voluntarily mediate, the arbitration tribunal shall mediate. If mediation fails, a decision shall be made in time. If an agreement is reached through mediation, the arbitration tribunal shall make a conciliation statement or an award according to the result of the agreement. The conciliation statement and the award have the same legal effect. "
Article 52: "... The conciliation statement shall have legal effect after it is signed by both parties. If the parties go back on their word before signing the mediation agreement, the arbitration tribunal shall make an award in time. "
As can be seen from the above, according to the provisions of the Civil Procedure Arbitration Law itself, neither a mediation agreement nor a settlement agreement has any legal effect: it is not only unenforceable, but also has no contractual binding force in contract law. Even if the mediation agreement or settlement agreement is reached on the basis of complete voluntariness and legality of the parties, the parties can go back on their word before receiving the mediation document of the court or the award or mediation document of the arbitration tribunal. However, if a court or arbitration institution has made a conciliation statement or award according to the conciliation agreement or settlement agreement of the parties, and the parties have received the conciliation statement or award, the parties shall not go back on their words, that is, the conciliation statement or award has the force of legal enforcement.
However, a series of judicial interpretations by the people's courts have greatly revised the effectiveness of mediation agreements and reconciliation agreements stipulated in the Civil Procedure Law. According to the Civil Procedure Law, the people's mediation agreement has no legal effect, and the parties can go back on their word at will. However, according to the Supreme People's Court Law Interpretation [2002] No.29, the people's mediation agreement has contractual effect between the parties. According to the civil procedure law, before receiving the mediation agreement from the court, the parties are not bound by the mediation agreement, that is, they can go back on their word at will. However, according to the provisions of the Supreme People's Court Law Interpretation [2003] 15, in the summary procedure, if the parties agree that the conciliation statement will take effect after being signed or sealed by both parties, the conciliation statement will take effect from the date of signing or sealing by both parties. However, in the Supreme People's Court Law Interpretation [2004] 12, the provisions of the Civil Procedure Law are still maintained. This reflects the Supreme People's Court's inconsistent understanding of the effectiveness of mediation agreement and settlement agreement.
In the form of judicial interpretation, the Supreme People's Court arbitrarily amended the provisions of the existing laws, which undoubtedly involved unconstitutional issues. But this article has no intention to discuss this unconstitutional issue of the Supreme People's Court. This paper only wants to clarify the effectiveness of mediation agreement and settlement agreement in China's civil procedure law from the perspective of necessity, in order to make correct provisions on the effectiveness of mediation agreement and settlement agreement when amending the civil procedure law and arbitration law.
Two, several important views on the effectiveness of mediation agreement and settlement agreement.
In recent years, with the revision of the validity of mediation agreement and settlement agreement by judicial interpretation in the Supreme People's Court, scholars began to pay attention to the research on the validity of mediation agreement and settlement agreement. Different scholars put forward different opinions on the effectiveness of mediation agreement and settlement agreement based on different value orientations and academic understandings. These viewpoints provide rich academic resources for us to study the effectiveness of mediation agreement and settlement agreement. Sorting out these opinions will help us to form a correct understanding of the effectiveness of mediation agreement and settlement agreement. By searching and sorting out the existing materials, the author thinks that there are two main views on the effectiveness of mediation agreement and settlement agreement, which deserve our full attention.
1. The mediation agreement and the settlement agreement are contractual in nature and are binding on the parties.
Scholars who hold this view believe that mediation agreement and settlement agreement are contractual in nature, so they should be contractually binding on the parties to the dispute, and the parties cannot go back on their word at will. The reason is:
Reconciliation is the peaceful settlement of disputes by both parties to the dispute through equal consultation and mutual compromise, and it is also the settlement of disputes by the parties themselves. Therefore, the settlement agreement reached by settlement is essentially a contract, so it is contractually binding on both parties to the dispute. [1] This view has sufficient basis in comparative law. In the civil code of civil law countries, reconciliation is generally defined as a famous contract. [2] In Anglo-American law, a settlement agreement is equivalent to a new contract between the parties. If one party fails to perform, the other party can sue according to the new contract. It can be seen that the settlement agreement, as a contract, is contractually binding on the parties to the dispute, and there is no problem in theory.
Mediation means that the third party (mediator) communicates information between the parties to a dispute according to certain social norms (including habits, ethics, legal norms, etc.). ), put forward the facts and reason, and promote mutual compromise and understanding between the two parties to the dispute in order to reach a consensus on resolving the dispute. Obviously, there is a certain difference between mediation and reconciliation. Mediation has mediators. However, the existence of mediators cannot change the contractual nature of mediation agreements. Because in all kinds of mediation, whether to use mediation, the content of mediation agreement, etc. , depending on the agreement between the two parties to the dispute. Mediators (whether people's mediation committees or courts) are neutral third parties, and they have no right to use any coercive means to urge both parties to reach an agreement to resolve disputes through persuasion and communication. Therefore, in various mediation procedures, although there are mediators, the mediation agreement itself is still a contract between the parties and is binding on the parties to the dispute.
After clarifying the contractual nature of the mediation agreement and the settlement agreement, scholars further pointed out that the mediation agreement and the settlement agreement are not deterministic and enforceable, and the parties cannot directly apply to the people's court for enforcement by virtue of the mediation agreement and the settlement agreement. However, once the mediation agreement and the settlement agreement are combined with the trial act or the arbitration act of the arbitration institution, the contents of the mediation agreement and the settlement agreement are legally binding. For example, the people's court makes a mediation agreement according to the mediation agreement or the mediation agreement of the parties, and after the parties sign it, it is legally enforceable. If the arbitration tribunal makes an award according to the settlement agreement, the award will have legal effect. However, it must be pointed out that at this time, it is the mediation or arbitration award that has legal effect, not the formal mediation agreement or settlement agreement itself.
The provisions in Articles 1 and 2 of Several Provisions of the Supreme People's Court on the Trial of Civil Cases Involving People's Mediation Agreements (Fa Shi [2002] No.29) reflect this view.
2. Mediation in litigation, the parties have the right to go back on their word before the mediation is signed.
Scholars who hold this view advocate maintaining the provisions of Articles 89 and 9 1 of the Civil Procedure Law. Even if the parties reach a mediation agreement, they still have the right to go back on their word before signing the mediation agreement. The main reasons are:
In fact, the right of estoppel is a kind of relief right for mediation agreements that are not really voluntary. As long as the agreement in the mediation agreement is really reached by the parties voluntarily, the estoppel of the parties can only be an exception at best and cannot be a common phenomenon in practice. However, if the mediation is coerced by the judge or mediated by the defense, it is reasonable for the parties to go back on their word.
As far as the judicial situation in China is concerned, compulsory mediation and induced mediation are by no means individual phenomena, on the contrary, they may be very common phenomena. In the process of mediation, it is not uncommon for judges not to strictly follow laws and regulations. In the process of mediation in China, the above-mentioned irregularities have profound conceptual and institutional roots. First of all, due to the long-term immersion in the authoritarian litigation mode, the operation of China's mediation system also reflects a strong authoritarian color. [4] The mode and timing of mediation are basically decided by the court or judge, which basically denies the rights of the parties to choose, participate and decide. Secondly, the investigation mechanism of misjudged cases and the internal reward and punishment incentive mechanism of the court may promote the motivation and behavior of the judge's mediation, and this dynamic opportunity will prompt the judge to use the means of mediation to the extreme, leading to coercion and inducement to the parties. Thirdly, in the practice of court mediation in China, there is a common phenomenon of not paying attention to finding out the facts and distinguishing the responsibilities, which often makes mediation a means of muddling through. Reports issued by some authoritative departments even believe that "the law stipulates that mediation will definitely do more harm than good on the basis of finding out the facts and distinguishing the responsibilities." [5] This is in stark contrast to the emphasis on the legal binding force of judges in German litigation settlement. In Germany, judges are different from mediators without judicial power, and even in litigation settlement, they are bound by substantive law. The settlement scheme suggested by judges must be made based on the viewpoint of substantive law.
In view of the phenomenon of compulsory mediation and induced mediation, it is impossible to completely eliminate it in China in the short term. In order to safeguard the legitimate rights and interests of the parties in civil litigation, it is necessary to continue to adhere to the provisions of the Civil Procedure Law and give the parties the right to repent.
Thirdly, the reconstruction of the effectiveness of mediation agreement and settlement agreement.
(A) a simple evaluation of the above two views
1, the evaluation of the first point above
The above-mentioned first viewpoint correctly reveals the contractual nature of mediation agreement and settlement agreement, and clarifies the long-term vague understanding of the nature of mediation agreement and settlement agreement in China's civil procedure law. It is under the guidance of this view that the Supreme People's Court Law Interpretation [2002] No.29 correctly stipulates the validity of people's mediation agreement. At the same time, this view also correctly points out that mediation agreement and settlement agreement are not enforceable. In order to be enforceable, judicial power and arbitration power must be combined and expressed in the form of mediation or award.
At the same time, the author thinks that this view also has serious defects. Although this view correctly reveals the contractual nature of mediation agreement and settlement agreement, there is no difference in the effectiveness of mediation agreement and settlement agreement in different legal procedures. I think it is inappropriate to think that mediation agreement and settlement agreement are contractually binding on the parties. Its theoretical defect lies in confusing the establishment and effectiveness of the contract. A contract is established because the parties agree on their own meaning, so a mediation agreement and a settlement agreement are both established contracts. However, the establishment of a contract is different from the entry into force, and the contract may not necessarily take effect at the same time after its establishment. The law can be based on some legislative policies, stipulating that a legally established contract will only take effect if it has certain special elements. For example, the law stipulates that some contracts must be approved by relevant departments before they can take effect. Therefore, it is a simplistic mistake to think that mediation agreement and settlement agreement are binding on the parties. It is not considered that in the case of litigation mediation and arbitration mediation, the law can make special provisions on the effectiveness of mediation agreement and settlement agreement to avoid the damage caused by compulsory mediation and induced mediation to the parties. In fact, in China's civil procedure law and arbitration law, the parties to litigation mediation and arbitration mediation have the right to go back on their word before signing the mediation agreement, which reflects the special consideration of the law on the effectiveness of mediation agreement and settlement agreement.
2. Evaluation of the above second viewpoint.
The second point above is to resolutely safeguard the right of the parties to repent. The author believes that the legal rights and interests of the parties can be better safeguarded under the current situation that compulsory mediation and induced mediation are still widespread in China. However, this view is only limited to discussing the effectiveness of mediation agreement in litigation, and does not involve the effectiveness of mediation agreement in settlement agreement and other legal procedures. In my opinion, if the parties' estoppel right is extended to the mediation agreement indefinitely in the settlement agreement and other procedures, it may violate the contractual essence of the mediation agreement and the settlement agreement, which is inconsistent with the purpose of setting up the estoppel right by law.
This paper holds that the settlement agreement, whether it is an out-of-litigation settlement or an in-litigation settlement, is binding on the parties, and the parties have no right to go back on their word. [6] The reason is that reconciliation is entirely a matter for the parties to resolve their own disputes and has nothing to do with the third party. Theoretically, there is no problem of forced reconciliation and induced reconciliation by the third party (mediator). Moreover, even if the fraud and coercion of a third party occurs in practice, the parties can completely solve it by means of contract law. Therefore, the settlement agreement is binding on the parties, and once the settlement agreement is reached, the parties have no right to go back on their word. Therefore, Article 50 of the Arbitration Law gives the parties the right to regret the arbitration settlement agreement, which is debatable in theory. At the same time, it must be clear that the settlement agreement itself is not deterministic and enforceable. If the settlement agreement is to be enforced, it must be combined with judicial power or arbitration power. In anglo-American law, if the court records the contents of the settlement agreement by ruling (consensus judgment), it has the same effect as the court's judgment; In German civil litigation, it is decisive and enforceable to register the settlement content as the contract content in the court file. Japan, on the other hand, stipulates that the court clerk records the settlement in the transcript, which has the same effect as confirming the judgment. [7] Article 49 of China's Arbitration Law stipulates that "if a settlement agreement is reached, the arbitration tribunal may be requested to make an award according to the settlement agreement." If the arbitration tribunal makes an award according to the settlement agreement, the content of the settlement agreement is certain and enforceable because it is endowed with the nature and effect of the arbitration award. China's civil procedure law has no provisions on litigation reconciliation. Article 4 of the Supreme People's Court Law Interpretation [2004]12 stipulates that "if the parties reach a settlement agreement by themselves in the course of litigation, the people's court may, upon the application of the parties, confirm the settlement agreement and make a conciliation statement." Once the litigation settlement agreement is embodied in the form of mediation, it is naturally deterministic and enforceable.
In addition, the people's mediation agreement is contractually binding on the parties, and the parties have no right to go back on their word. For the arbitration mediation agreement, the parties have the right to go back on their word. The reason is that in the people's mediation system, the parties have the initiative to start, run and even form the final result of the mediation procedure. In practice, compulsory mediation and enticement mediation by people's mediation committees generally do not occur. Even if the above situations occur, the parties can bring a lawsuit to the court on the effectiveness of the people's mediation agreement. In the arbitration system, although the initiation of the arbitration procedure depends entirely on the parties to the dispute. However, once the arbitration procedure is started, the operation of the arbitration procedure and the formation of the arbitration result depend on the arbitration tribunal, and the status of the parties in arbitration is similar to that of the parties in litigation. At the same time, although the court has also supervised the arbitration to a certain extent, the arbitration is final and the parties cannot bring a lawsuit against the arbitration award. Therefore, if the arbitration tribunal conducts compulsory mediation and temptation mediation on the parties, it is difficult for the parties to obtain effective relief. Therefore, in arbitration mediation, as in litigation mediation, the parties should be given the right to repent.
(2) Reconstruction of the effectiveness of mediation agreement and settlement agreement.
Based on the above analysis, the author thinks that the validity of mediation agreement and settlement agreement cannot be simply unified, but different legal effects should be stipulated for mediation agreement and settlement agreement in different procedures. The effects of mediation agreement and reconciliation agreement in China's civil procedure law are summarized as follows:
1. The settlement agreement, whether litigation settlement or arbitration settlement, is essentially a contract in civil law, so it is contractually binding on the parties. However, the settlement agreement itself has no certainty and force. In order to obtain certainty and enforcement, the settlement agreement must be expressed in the form of court mediation or arbitration award in combination with judicial power or arbitration power. In fact, China's current civil procedure law only provides for settlement outside litigation, and there is no provision for settlement inside litigation, so we must pay attention to perfection when amending the civil procedure law. China's current arbitration law stipulates the parties' right of repentance in the arbitration settlement agreement, which violates the contractual nature of the settlement agreement. This mistake should be corrected when the arbitration law is amended.
2, the effectiveness of the implementation of the settlement agreement, different from the effectiveness of the general litigation settlement. The effect of Article 2 1 1 of the Civil Procedure Law on the execution of the settlement agreement should still be maintained.
3. The people's mediation agreement is a civil law contract in nature, which is binding on the parties. If the parties have objections to the validity of the people's mediation agreement, they may bring a lawsuit to the people's court in accordance with the provisions of the Contract Law on the validity of contracts. The people's mediation agreement has no certainty and enforceability. The Supreme People's Court Law Interpretation [2002] No.29 correctly explains the validity of people's mediation agreement, which should be adopted in the revision of the Civil Procedure Law.
4. Although the mediation agreement of litigation mediation is also a contract in civil law in nature, based on the special consideration of protecting the parties from compulsory mediation and temptation mediation, the mediation agreement is legally binding on the parties only if it is combined with judicial power and expressed in the form of court mediation, and it is also deterministic and enforceable. That is to say, before the mediation is delivered, the parties to the mediation agreement have the right to go back on their word. Article 15 of "Several Provisions of the Supreme People's Court on the Application of Summary Procedure to the Trial of Civil Cases" (Law Interpretation [2003]15) stipulates that "if both parties agree that the conciliation statement will take effect after being signed or sealed by both parties, the conciliation statement will take effect from the date when both parties sign or seal it." This provision is not enough to protect the parties from compulsory mediation or induced mediation, because if the judge carries out compulsory or induced behavior in the process of mediation, the judge can easily compel or induce the parties to agree that "the mediation document will take legal effect from the date when both parties sign or seal it". This will make the provisions of the current civil procedure law on the right of the parties to repent useless. Therefore, the provisions in Article 15 of the Supreme People's Court Interpretation [2003] 15 are inappropriate and should be abolished as soon as possible. When the Civil Procedure Law is amended, the provisions of Articles 89 and 9 1 of the current Civil Procedure Law shall be maintained.
5. The mediation agreement in arbitration mediation has the same effect as the litigation mediation agreement. When the Arbitration Law is amended, the provisions of Article 52 of the current Arbitration Law shall be maintained.