中國民事訴訟「調判一體化」研究

Abstract

Chapter I Introduction. The first chapter presents the original motivation, the literature overview and research methodology of the research. This chapter commences with the well-known lawsuits and outstanding features in Chinese civil litigation, including the PengYu case, the Frozen Embryos case and the "Revolving Door Symptom" in the adjudication & mediation interaction. After that, it demonstrates and analyzes the relationship and applicability of adjudication & mediation in dispute resolution within Chinese court, and introduces the theme of this thesis subsequently.

Chapter II Re-construction of the Integration Procedural Theory. This chapter deals with the re-construction of the theory relevant with the Integration. With the comparative study method, this chapter analyzes the differences in procedural settings and procedural validity of civil dispute resolution models in United State s and Germany, and explores the reasons of such differences. Based on the conclusion of comparative study, this chapter examines the status quo of adjudication & mediation application in Chinese civil litigation from three dimensions: the procedure structu re, which demonstrates the dynamic feature; the litigants' interaction, which manifests both cooperation and confrontation; the validity evaluation, which shows their equal validity. Therefore, the concept of integration can be constructed theoretically.

Chapter III the Internal Functions of the Integration. This theme was explored from the perspective of the co-existence of adjudication & mediation, their tension and participants' behaviour logic. These internal functions explain why the Chinese civil litigation, undergoing the tension between the idealism and realism, possesses different features compared with the Western judicial culture and evolves with constant sustainability and living strength. Therefore, the Integration has a multi-level structure.

Chapter IV Operation Logic of the Integration. This chapter illustrates the dynamics of the Integration by deconstructing its operation process from the angle of litigation participants, presents a typical gaming mechanism within the participants during the disputes resolution, and analyzes the litigants' cooperation and confrontation process driven by the Integration logic. By analyzing the civil litigation participants and its process, this thesis demonstrates the active role of Chinese judges in their flexible application of adjudication & mediation during the dispute resolution, and the Integration structure based on their comprehension of the interests balance among the litigants. In the mean while, different from judges, the litigants affect the Integration operation by disposing their rights. The effectiveness of the Integration can be embodied by balancing the litigants' interests while resolving disputes, shaping the judicial decision-making rules while setting value orientation, and enhancing the outcome acceptability of the judicial rulings while maintaining the social stability.

Chapter V Acceptability of the Integration Litigation Outcome. This chapter examines the outcome acceptability of the judicial rulings resulted from the Integration, by utilizing substantial and formal test respectively and conducting a final and comprehensive analysis based on such dichotomy. This part emphasizes on solving four problems: how to facilitate and intensify the common-ground among the participants, how to promote the reasonableness of the litigants, how to balance the internal and external affecting features of the civil ligation, and how to improve the effectiveness of the adjudication & mediation application. Based on the above analysis, this chapter further clarifies the application principles and specific rules about the Integration in order to enhance its outcome acceptability.

Chapter VI Conclusion and Outlook. The final part draws conclusion about the Integration. Based on the conclusion and the status quo of Chinese civil procedure theory and practice, this chapter also forecasts the Integration's development tendency as well as new features and concerns.

The thesis's primary contributions are as follows: Firstly, it fills the void in the current theory research. This thesis pioneers in theorizing and systematizing the legal phenomenon of such integration, and provides a structural and theoretical foundation for the subsequent study. Secondly, it affirms that the Integration model satisfies the current needs of Chinese judicial practice under the circumstance of construction of "rule by law", the gradual change of legal policy and judicial reformation. The empirical study in this thesis cites various typical cases and data collected during author's adjudicating career for decades, significantly promoting the theoretical and practical value of this thesis and providing substantial foundations for subsequent studies. Finally, this thesis uses comprehensive methodology such as empirical, comparative and historical study, while innovatively introducing integration theory into the civil procedure study. It is a significant trans-disciplinary breakthrough of study method, which will benefit the subsequent studies in this field.

Date of Award	6 Apr 2022
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Peter WANG (Supervisor)