Application of settlement

-A settlement under the auspices of the Supreme People's Court

Civil disputes are an unavoidable phenomenon in human society. If disputes cannot be resolved, social order will be difficult to maintain. For the effectiveness of governance and the stability of social life, the state must set up effective procedures to resolve disputes. In modern society, litigation is the main means of public relief, but this does not mean that any disputes that enter the litigation procedure will necessarily need to be resolved in the form of litigation. In a traditional society like China that advocates "harmony" In the media, the emphasis on resolving disputes through the mediation of the referee or the voluntary reconciliation of the parties under the guidance of the referee has undoubtedly become an important means of maintaining the stability and harmony of social life.

There are sayings in Western law: "Reconciliation is the most appropriate enforcement", "Thin reconciliation is better than fat lawsuit", these statements are vividly portrayed, even in the West, everyone advocates taking disputes to court. In a "black and white" fair trial society, the same emphasis is placed on the voluntary reconciliation of civil disputes between the parties. In a society of human relations with thousands of years of Confucian cultural traditions like China, reconciliation has become an important choice for resolving civil disputes between parties. The following case handled by the author has gone through the first instance, second instance, retrial, and retrial appeal. Finally, under the auspices of the Supreme People’s Court, the two parties reconciled and closed the case. This resulted in a relatively satisfactory result and also ended the parties’ more than ten years of experience. Tired.

1. The case

On November 30, 1994, the Economic Development Center of Jiaozuo Development Zone (hereinafter referred to as the Development Center) and the Real Estate Credit Department of Jiaozuo Branch of the former China Construction Bank (hereinafter referred to as the Credit Department of CCB) signed a loan contract, stipulating that the development center will The Credit Department of China Construction Bank borrowed 5 million yuan for real estate development, with a loan period of one year, and the monthly interest rate was calculated at 10.98‰. If the loan is not repaid after it expires, the guarantor will repay it on its behalf. The municipal company of the guarantor will affix the official seal in the guarantee column of the contract, but the guarantee period has not been agreed. After the contract was signed, the Credit Department of China Construction Bank issued a loan of 5 million yuan to the Development Center on the same day. After the loan expired on November 29, 1995, because the development center did not repay, the two parties re-signed a loan contract for the loan on that day, stipulating that the development center borrowed 5 million yuan from the Credit Department of CCB for municipal construction and For real estate development, the loan period is 20 days, and the monthly interest rate is 12.06‰. The loan is still guaranteed by the municipal company, and the way of guarantee: joint liability. Guarantee period: from the effective date of the independent contract to the termination of the contract.

At the same time, on December 12, 1994, the Development Center and the Credit Department of China Construction Bank also signed a loan contract, stipulating that the Development Center would borrow 5 million yuan from the Credit Department of China Construction Bank for a period of one year and a monthly interest rate of 10.98‰. If the loan cannot be repaid after it expires, the guarantor will repay it on its behalf. The municipal company of the guarantor will stamp the official seal in the guarantee column of the contract, but the guarantee period has not been agreed. After the contract was signed, the Credit Department of CCB issued a loan of 5 million yuan to the Development Center on the same day. After the loan expired on December 11, 1995, because the development center did not repay, the two parties signed a loan extension agreement for the loan on August 14, 1996, stipulating: the extension amount is 5 million yuan, and the extension is 6 Month, the monthly interest rate is 12.06‰. If the development center cannot repay the principal and interest on time, the guarantor shall repay it on its behalf within 15 days after receiving the "Notice of Overdue Loan". If the loan is still outstanding within 15 days, the lender can directly deduct the money from the bank deposit of the borrower or the guarantor. The guarantor municipal company stamped the official seal in the guarantee column of the loan extension agreement.

After the above two loans expired, due to the development center has not repaid, the China Construction Bank Jiaozuo Branch Heping Street Branch (CCB Credit Department was renamed China Construction Bank Branch Heping Street Branch on July 16, 1997, hereinafter referred to as: Heping Street Branch) In June 1999, he delivered two "Notices for Collection of Overdue Loans" (hereinafter referred to as dunning notices) to Wang, the original legal representative of the Development Center. Wang signed the two "dunning notices" separately: To. Wang. 97.7.20". On July 16, 1999, the Heping Street Sub-branch sued the Development Center and the municipal company, demanding that the two defendants repay the loan principal of 10 million yuan, interest and penalty interest. On October 26, 1999, the Heping Street Sub-branch stated that “the development center does not have legal personality, and its legal representative Wang Mou is the deputy secretary general of the municipal government. The 10 million yuan loan has been used for the construction of the new district in Jiaozuo City, and the municipal government is the beneficiary "For this reason, applied to change the defendant's development center to: Jiaozuo City Government. After the application was approved, the author accepted the entrustment of the Jiaozuo Municipal Government and participated in the first instance, second instance, retrial, retrial appeal and final settlement of the case as its agent. On December 19, 1999, the Heping Street Sub-branch transferred its 10 million yuan of creditor’s rights to Cinda Zheng Office, and on November 25, 1999 and June 6, 2000, respectively, to the Jiaozuo City Government and the municipal company. Reached the "Notice of Assignment of Creditor's Rights." On June 6, 2000, Heping Street Sub-branch applied to change the plaintiff to: Zhengzhou Office of China Cinda Asset Management Co., Ltd. (the following Referred to as Cinda Zheng Office).

The first review of this case revealed that the development center was registered with the industrial and commercial authority on October 25, 1994, and the starting unit was the Jiaozuo Development Zone Management Committee, and the legal representative of the development center was concurrently served by the director of the Development Zone Management Committee Office Wang. On July 14, 1997, Wang was removed from the post of Director of the Development Zone Management Committee Office by the municipal government. On July 16, 1997, the Administrative Committee of the Development Zone removed Wang from the position of legal representative of the Development Center. On August 6, 1999, the business license of the development center was revoked by the industrial and commercial authority. Its creditor's rights and debts shall be cleared by the sponsor.

In the first instance, whether the two claims exceeded the statute of limitations became the focus of the case. The author believes that the two loans were due on December 19, 1995 and February 13, 1997 respectively. As of the date when the plaintiff filed a lawsuit with the Jiaozuo Intermediate People’s Court, the plaintiff’s claims have exceeded the two-year statute of limitations. And there is no reason for termination, interruption, or extension of the limitation period, so the plaintiff can no longer claim its claims. The plaintiff Fang Xinda Asset Management Company Zhengzhou Office submitted two "dunning notices" signed and acknowledged by Wang Mou, the original legal representative of the Development Center, in an attempt to prove that the Heping Street Sub-branch submitted to the Development Center representative on July 20, 1997. Ren Wang has claimed that the statute of limitations should be suspended, and his claims did not exceed the statute of limitations. However, the plaintiff provided evidence to prove that Wang signed the "dunning notice" in June 1999, and the date of receipt on July 20, 1997 was signed by Wang under the inducement of the bank staff, and provided evidence to prove Wang. When signing the "dunning notice", the plaintiff was no longer the legal representative of the development center and the plaintiff was aware of this fact, and strongly refuted the other party's claim that "Wang was not the legal representative of the development center at that time, but also constituted an apparent agent "The statement. The court accepted the author’s agency opinion and made a first-instance judgment on July 11, 2000, and found that: the plaintiff’s Zhengzhou office had no evidence to prove that it had claimed creditor rights during the statutory statute of limitations, and there were no reasons for interruption, suspension, or extension. Therefore, the plaintiff requested the Jiaozuo Municipal Government to bear the statute of limitations for repaying the principal and interest of the two loans for more than two years, and his claims are not protected by law. Regarding the municipal company’s guaranty liability, the court found that: the guarantee period agreed in the guarantee contract signed on November 29, 1995 was unclear. According to relevant regulations, Heping Street Construction Bank should end six days after the guaranteed loan expires. Within months (from December 15, 1995 to June 19, 1996), the guarantor’s municipal company was claimed for rights, but the plaintiff had no evidence to prove that he had claimed rights against the municipal company during this period; August 14, 1996 The signed extension agreement does not stipulate the guarantee period. According to the relevant provisions of the "Guarantee Law", Heping Construction Bank shall within six months from the expiry date of the guaranteed loan (from February 13, 1997 to 1997) As of August 13) claiming rights against the municipal company, the guarantor, but the plaintiff has no evidence to prove that the claim has been made against the municipal company during the period. Therefore, the guarantor municipal company exempted the guaranty liability, so the plaintiff’s reason for requesting the municipal company to assume the guaranty liability was insufficient and this court did not support it. "

The plaintiff refused to accept the judgment of the first instance and appealed to the Higher People's Court of Henan Province. The appellant believes that the court found that Wang’s signature on the dunning notice was wrong in June 1999. In the petition, the appellant submitted: “The appointment and dismissal document No. 97.6 of the Jiaozuo Municipal Government just removed Wang. The director of the management committee did not remove his status as the legal representative of the development center. After Xu was appointed as the legal representative of the development center, the development center did not go through the procedures for industrial and commercial change registration, and the economic development center was in August 1999 The business license was revoked on the 6th. For the units interacting with the development center, they could not know the municipal government documents. They can only inspect the development center’s situation based on the industrial and commercial registration, including its legal representative. Therefore, even if Wang has already Not the legal representative of the Economic Development Center, it has also formed a de facto "apparent agency relationship" with the Development Center, and its signature on the dunning notice should be effective for the Development Center. Therefore, the creditor’s rights and debts in this case did not exceed The statute of limitations."

Regarding the question raised by the appellant in the second instance that Wang was an "apparent agent", the author believes that the original CCB staff found Wang, who was then the director of the Foreign Trade Bureau, in the office of the Director of the Foreign Trade Bureau, one kilometer away from the Jiaozuo City Government. If the “dunning notice” was back signed, the office of the “development center” was in the municipal government, and Wang did not work in the office of the “development center”. When he went to the Foreign Trade Bureau, the staff of CCB went directly to the Foreign Trade Bureau to find Wang. This fact proves that the staff of CCB cannot be ignorant of the fact that Wang is no longer the legal representative of the "Development Center". The appellant's reason for "apparent agency" cannot be established. Regarding the appellant’s question that the change of legal representative is not recorded in the industrial and commercial registration, the author believes that the method, procedure and authority for the formation of corporate legal representative are stipulated by the enterprise’s articles of association recognized by the industrial and commercial department. The effectiveness of. The requirement to change registration within 30 days is procedural, and the confirmation of the legality of the new legal representative can be prevented through review, but the validity of the precondition, substantive, and substantive decision of the legal representative’s resignation cannot be denied. Moreover, the Development Center is an independent legal person and should bear civil liabilities independently. The Jiaozuo Municipal Government is neither the initiator of the Development Center nor its competent authority, and it has no legal obligation to assume the debts of the Development Center.

In the second instance, the Henan Higher People’s Court accepted the evidence provided by the author proving that the manuscript paper used by the Municipal Foreign Trade Bureau is the same as the manuscript paper used in the dunning notice, and held that Wang’s testimony proved that he signed the dunning notice with the foreign trade bureau in June 1999. It can be accepted, and it is determined that the time of receipt of the notification bookmark determined by the original trial is correct. Regarding whether Wang’s signing act constituted an apparent agency, the court accepted the author’s evidence and determined that it did not constitute an apparent agency. On May 16, 2002, the Henan Provincial Higher People's Court rejected the appeal according to law and upheld the original judgment.

So far, a case with clear facts and sufficient evidence should be able to be closed in the Henan Higher People's Court after the final instance of the second instance, but the second instance appellant Xinda Zhengban refused to accept it and appealed to the Henan Provincial People's Procuratorate. The Provincial Procuratorate asked the Supreme People’s Procuratorate to protest to the Supreme People’s Court.

The Supreme People's Procuratorate held in the Gaojian (2005) No. 11 civil protest that: 1. Wang's testimony was adopted in the final judgment and denied the probative power of the "Letter Collection of Overdue Loans" based on it. The Supreme Procurator believes that the final judgment was because "'The actual time of receipt of the notice was June 1996, the place of signing was at the Municipal Foreign Trade Bureau and the notice was written using the foreign trade bureau's manuscript paper." Xinda Zheng Office did not raise any objections and did not respond. Contrary evidence was provided at the place where the notice was served, and the manuscript paper used for the notice was the same as the manuscript paper used for the certification by the Municipal Foreign Trade Bureau. Therefore, Wang’s testimony was accepted. This reason is untenable.” He believes: (1) Manuscript paper for the reminder notice. It is not the special manuscript paper of the Foreign Trade Bureau. It can be used by the Foreign Trade Bureau, and other people can also use it. It cannot be concluded that this is Wang's behavior during his tenure in the Foreign Trade Bureau. (2) Cinda Zheng Office is not without objection. In the trial of the second instance, Cinda Zheng Office stated: The specific place and time of Wang’s signature was not clear to us because the party involved was CCB instead of Cinda. However, no matter when and where, we think it should be The signature is valid. Since Xinda Zhengban did not participate in the dunning behavior at the time, this explanation and defense can be established. It cannot be regarded as an approval or no objection to Wang's testimony, nor can it be not difficult because it did not provide contrary evidence to the place of service. Regarding the first reason given in the Supreme Prosecution's protest. If the dunning notice claimed by the appellant was indeed signed by Wang on July 20, 1997, it is necessary and possible for Wang to prepare a copy in advance, which may be used by the Foreign Trade Bureau under the local circumstances at that time. Manuscript paper? Regarding the second reason raised by the procuratorial organ. We should consider the fact that during the first and second instances, the witness of the applicant Xinda Zhengban never appeared in court to testify when the other witness asked for a confrontation. Therefore, Lenovo’s vague expression of "our side (Xinda Zheng Office) believes that the signature is valid" mentioned in the procuratorial organ’s reasons can not help asking people, if it is certain that the signature occurred in 1997, why did you believe it? Dazheng Office did not dare to explain directly to the court that Wang's testimony was false in order to confirm that the true signature date was 1997? If it is believed that Cinda Zheng Office could deny the true date of the signature without directly participating in the dunning behavior, the few facts and evidence found in the court trial will be useless. One cannot help asking whether the procuratorial organ’s protest cites ambiguous testimony, trying to refute facts that are confirmed by solid evidence in the course of the court trial, whether it should also reasonably doubt whether Xinda Zhengban is using this according to the standards of a rational person. Sophistry of the vague testimony?

2. The final judgment held that when Wang signed the dunning notice, CCB knew that Wang was not the legal representative of the Development Center, and the main evidence was insufficient. Based on this, the Supreme People’s Procuratorate overturned the judgments of the courts of the first and second instance and found that “According to the industrial and commercial registration, Wang has always been the legal representative of the development center. The development center should still be responsible for business contact with the legal representative." Whether Wang’s behavior composition should still be determined according to the industrial and commercial registration is the focus of the dispute between the two parties on this legal issue during the first and second instance. The judges of the trial court have given convincing judgments with their professional knowledge and legal literacy.

After the Supreme People’s Procuratorate protested to the Supreme People’s Court, the Supreme People’s Court ordered the Henan Higher People’s Court to retrial, and the Henan Higher People’s Court formed a collegiate panel to retrial the case. The new collegiate panel fully accepted the prosecution's protest opinions, and issued the (2005) Yufa Minzai Zi No. 90 Civil Judgment on November 7, 2005, and annulled the Jiaozuo City Intermediate Court (1999) Jiao Jing Yi Chu Zi Judgment No. 95 and the High Court’s own (2002) Yu Min Er Zhong Zi No. 79 Civil Judgment ruled that the Jiaozuo City Government should repay the loan principal of 10 million yuan and bear all litigation costs in the first and second instances. On February 9, 2006, the right holder applied to the Jiaozuo Intermediate People's Court to enforce the principal and interest. The Jiaozuo Intermediate Court filed a case for execution on March 7, 2006.

The author believes that the Henan Provincial Higher People’s Court (2005) Yufa Minzaizi No. 90 Civil Judgment violated the facts and the law, deviated from the basic method of specific analysis of specific issues in the evidence admissibility of the case, and violated the judicial trial work. The supreme requirement of seeking truth from facts caused heavy losses to the Jiaozuo Municipal Government of the respondent in the retrial. In order to protect the lawful rights and interests of the parties, and to correct the wrong judgment in the retrial, the grievances of the parties can be cleared up. The author represented the Jiaozuo Municipal Government to appeal to the Supreme People's Court on May 28, 2006, requesting the Supreme People's Court to retry the case in accordance with the law.

In the application for retrial, the author reiterated the evidence and reasons he presented in the first and second instances, and refuted the errors in the judgment of the retrial court. The main reasons were as follows: (1) The complainant should not be the defendant in this case , Should not be liable for repayment. The development center is an enterprise legal person whose registered capital is in place, has business premises, organizational structure and articles of association, and can independently bear civil liabilities after the registration authority has examined and confirmed it. According to the legal personality independence and the principle of relativity of debts, the original creditor Heping Street Branch and the respondent can only claim credits from the Borrower Development Center, and the Jiaozuo City Government cannot be the defendant in this case and should not be liable for repayment. (2) The respondent has lost the right to win the case due to claiming the creditor's rights beyond the statute of limitations. Doubts such as the non-standard format of the reminder notice used by the respondent indicate that Wang signed the so-called reminder notice in June 1999, which had exceeded the statute of limitations, instead of July 20, 1997. The applicant insisted that July 20, 1997 was a Sunday, and the government agency did not operate at all. In addition, the respondent found Wang, who was then the director of the Municipal Foreign Trade Bureau, to sign the reminder notice and also stated that they knew that Wang had no longer served as the legal representative of the Development Center.

The Supreme People's Court attached great importance to the retrial appeals and reasons submitted by the author on behalf of the petitioner, and organized hearings for both parties on many occasions. Taking into account the special circumstances of both parties and the fact that it has been more than ten years since the occurrence of the case, the two parties are still in disagreement over the evidence determination of the facts, and are suffering from repeated litigation. The Supreme People’s Court helps both parties communicate and actively coordinate the parties. Voluntary settlement. During the reconciliation process, the judges of the Supreme Court carefully reviewed the files, conducted detailed research on the facts with sufficient evidence and related legal issues, adjusted the gap between the parties’ knowledge of the disputed facts and the law, and created a consensus for both parties. Conditions. In this process, the judges of the Supreme Court, after fully listening to the opinions of both parties, transformed their ideas on the solution of the case into clear and persuasive propositions, which were conveyed to both parties. Relying on the prestige and influence of the court, both parties responded in good faith. On October 19, 2007, the Jiaozuo Municipal Government of the petitioner and Xinda Zhengban, the petitioner, reached a settlement agreement. The petitioner paid 4.5 million yuan to the respondent in a lump sum and withdrew the petition to the Supreme People’s Court. , The respondent voluntarily waived all remaining claims, and was obliged to apply to the Jiaozuo City Intermediate Court for termination of enforcement as agreed. The execution of this case came to an end. However, before the applicant fulfills the corresponding repayment obligations on time and in full in accordance with this agreement, the applicant’s corresponding repayment obligations to Cinda Zheng Office in accordance with No. 90 "Civil Judgment" shall not be caused by signing this agreement. Exempt. After the claimant paid 4.5 million yuan to the respondent according to the contract, he no longer assumed the remaining debts of the case and withdrew the appeal application in the Supreme People's Court. Article 3 of the settlement agreement stipulates: if the applicant goes back after this agreement comes into effect or fails to perform its obligations as stipulated in this agreement, it will lose all rights in this agreement, and the respondent shall have the right to require the applicant to perform or pay for it at any time based on the balance of principal and interest. Jiaozuo City Intermediate People's Court applied for continued execution. The applicant shall not file an appeal again, and the respondent regrets or fails to perform its obligations as stipulated in the agreement after this agreement comes into effect, it will lose the right to continue to execute the Civil Judgment No. 90. On October 18, 2007, the complainant's Jiaozuo Municipal People's Government filed an application for withdrawal of the lawsuit to the Supreme People's Court. On November 26, 2007, the Jiaozuo Intermediate People's Court issued (2006) Jiao Zhi Zi No. 18 Civil Ruling, ruling that the Henan Provincial Higher People's Court (2005) Yu Fa Min Zai No. 90 Civil Judgment should terminate its execution. The ruling will take effect immediately after it is served.

So far, a case that lasted for ten years, went through first instance, second instance, retrial, then appealed for retrial, and finally settled. Finally, there was a relatively complete result. This is due to the fact that both parties can achieve mutual accommodation and mutual understanding in the process of voluntary reconciliation, so that the interests of both parties can be balanced. It also benefits from the great patience and patience of the judges of the Supreme People's Court to facilitate the reconciliation of the parties. Meticulous work; even more benefited from the Supreme People’s Court’s ability to flexibly use this abstract and principled provision in the procedural law in specific practical activities, through the agreement of the parties to thoroughly resolve disputes and reduce the parties’ Repeated complaints.

Throughout this case, the reconciliation system played a vital role. It was the reconciliation system that enabled the 13-year litigation to be finally resolved. The author below briefly introduces the reconciliation system.

2. Summary of the settlement system

In the reconciliation system, the parties voluntarily reach a settlement agreement to terminate litigation, which embodies the right of both parties to dispose of freely, and also reflects the spirit of private law autonomy. Therefore, in countries with more developed private law functions, there is no exception in civil litigation. Both provide for a litigation reconciliation system, which has become a natural extension of the spirit of private law autonomy in the field of litigation.

(1) Comparative study of foreign reconciliation systems

1. The United States Civil Litigation Settlement System. In civil litigation in the United States, the parties can reach a settlement at any time. The way to reach a settlement can be a settlement by the parties themselves, or a settlement under the auspices of a judge. If the two parties settle on their own through an agreement, the two parties "will terminate the proceedings they are affiliated with, and they can file a withdrawal action signed by both parties in the court in accordance with Article 41, paragraph 1, item 1, of the Federal Rules of Civil Procedure. A written agreement to end the litigation.” In litigation settlements presided over by judges, the trial judge of the case shall not preside over the settlement, and is generally conducted by a special settlement judge, who cannot interfere or influence the settlement result of the case through hints or suggestions. The settlement in the litigation is regarded as the plaintiff's automatic suspension of the litigation, and does not hinder one of the parties from filing a lawsuit. If the settlement agreement is to be enforced, both parties can apply to the court for a consensual judgment based on the settlement agreement, and the judgment is enforceable. It can be seen from this that the issue of the effectiveness of the settlement agreement in US law is the "pure private law doctrine."

2. The British civil litigation settlement system. The litigation settlement system in the United Kingdom is largely similar to that in the United States, and the settlement agreement does not have the effect of enforcement. To obtain such effect, one must apply for a "consensual judgment." There are two forms of "consensual judgment". One is to apply for the court to record the settlement matters on the judgment; the other is to apply for the so-called "Tomlin" ruling. According to the latter method, if one of the parties fails to perform the settlement agreement, the other party must apply to the court to make a ruling ordering the party that violated the settlement conditions to perform its obligations. If the latter still does not perform according to the ruling, it can apply to the court for enforcement. Although this ruling is more cumbersome in procedure than the former, it has the advantage that the settlement conditions are not disclosed. It can be included in the complex settlement conditions that cannot be absorbed by the usual court rulings, so it does not lose flexibility. It can be seen from this that English law also adopts a "purely private law doctrine" for settlement agreements, so if the settlement agreement is flawed, it will be deemed invalid or revoked.

3. German civil litigation settlement system. The German Civil Procedure Code of 1877 provided for arbitrary settlement before litigation. In 1924, it was changed to compulsory settlement, that is, the district court must settle before litigation. Article 279 of the current German Civil Procedure Code of 1976 stipulates: “The district court or state court shall strive to facilitate reconciliation between the parties during the proceedings. For this purpose, the parties shall be ordered to the case or handed over to the judge or On this basis, the court will try its best to settle between the parties in order to obtain an amicable settlement. Article 794 of the "German Code of Civil Procedure" stipulates that, although the settlement of a disputed contract is not a court decision, it must be registered as a contract in the court file to have the effect of enforcement. The German Civil Procedure Law also stipulates that as a settlement to terminate a disputed contract, it is established for both parties to make concessions, so the settlement in litigation still needs to consider the substantive law, that is, to examine whether the two parties have made concessions. This shows that the effectiveness of the settlement agreement adopts the "private behavior theory." Based on this, some scholars believe that in Germany, the validity of the settlement agreement has a dual legal nature.

4. French civil litigation settlement system. The French courts are divided into courts of major instance and courts of minor instance. In the court of large-instance, the judges rarely try to reconcile the parties. If a reconciliation is required, the court generally indicates to the parties the outcome of the judgment they foresee. In the small-instance court, the judge or the conciliator presides over the settlement of both parties. When the judge presides over the settlement, the judge decides the place and place for the settlement, and then the clerk informs the parties of the content set by the judge. If the parties agree to the settlement, they must attend the court on time. “When the judge is trying to settle, he mainly adopts Express to the parties the conclusions of the judgment that they foresee so that the parties can accept the agreement, but the judge basically does not spend time persuading the parties"; in the case of a settlement presided over by the settler, the judge first proposes the intention to appoint a settler , Notify the parties to express their objections within 15 days. The parties had no objections, and the judge immediately made a formal appointment to determine the time limit for the settlement, and sent a copy of the application to the settler. During the reconciliation, the reconciler will report the progress of the reconciliation to the judge at any time. At the request of a party or the settlement party’s proposal, the judge terminates the settlement agreement at any time or terminates the settlement under his authority. During the settlement period, if both parties reach a settlement agreement, they can request the court to confirm the settlement. If no settlement is reached, the judge will give the applicant a notice of inconsistent settlement. The settlement agreement in French law is not enforceable. Even if the parties reach a settlement agreement, they can still apply to the court to accept the case for judgment.

Compared with foreign reconciliation systems, our country’s reconciliation system has a longer history.

(2) my country's reconciliation system

1. The historical and ideological causes of the reconciliation system in Chinese society

According to "Zhou Li" records, during the Zhou Dynasty in my country, there were local officials who were in charge of reconciling the grievances of the people, and the village husbands of the Qin, Han and Jin dynasties had the function of resolving disputes. In the Song Dynasty, with the increase of civil disputes, mediation showed a trend of institutionalization, and the Ming and Qing Dynasties became more and more perfect. During the Ming Dynasty, a quasi-judicial mediation organization called "Shen Ming Pavilion" appeared in our country. According to Ming Dynasty's law, "where the folks should have a word, the old chief Xu Da is allowed to be treated by this pavilion". According to records, "mediation" can be roughly divided into two types: government mediation and non-governmental mediation. The former refers to mediation and lawsuit activities presided over by state and county officials, similar to what we now call mediation. The latter is mostly composed of neighbors and clan leaders. Waiting for the power of clan organizations to proceed is similar to the current settlement outside litigation. It can be seen from this that since ancient my country, the reconciliation and mediation system has become an important method for resolving disputes. Not only did it come into being earlier than my country's civil litigation system, its effectiveness is also superior to that of my country's civil litigation system.

Confucius, the first master of Confucianism, once clearly expressed this thought: Listening to the complaint, I am still a person, and I must also make no complaint. Under the rule of Confucianism, "precious harmony holding middle" and "precious monk middle" have become the characteristics of traditional Chinese culture for thousands of years, and "no litigation" has always been the goal pursued by the ruling party. Under the domination of such an ideal of "no litigation", on the one hand, local officials use moral education to resolve legal disputes in order to receive the effect of peace; on the other hand, in the hearts of ordinary people, they are "tired of litigation" and "low litigation". "The concept of "shame suit" is deeply ingrained, and the so-called "succumbing to death without complaint" is an extreme manifestation of this concept. It is this kind of aversion and rejection of litigation that made "mediation" a very important method of dispute resolution in ancient China. Some scholars have pointed out: "If non-litigation is the value orientation of ancient Chinese politics and legal system construction, then mediation is one of the important means to achieve silence and non-litigation. This has a long history in ancient China, and it has not only accumulated Rich experience and the formation of a complete set of systems are rare in the history of the world's legal system." Although various forms of "mediation" differ in their presiding personnel and effectiveness, one thing is the same, that is, "disputes". The focus of the solution is not to determine or protect the rights of anyone, but to identify good and evil, settle disputes, and restore ideal harmony-an order organized according to moral principles."

It can be seen that in the tradition of ancient Chinese law, the concept of "mediation" started from the pursuit of a harmonious natural order. The so-called "harmony of man and nature" and "harmony of family and country" are the clear expressions of this idea. Under the domination of this ideal, the security, stability and interests of the society as a whole have obtained absolute advantages, while private interests and selfish desires cannot be recognized by the mainstream culture. This undoubtedly reveals to us the profound historical, cultural and ideological origins of the reconciliation and mediation system in the Chinese legal tradition.

2. The status quo of civil litigation settlement in my country

China’s civil litigation does not provide for out-of-litigation settlement. If the parties reach a settlement agreement without entering the litigation procedure, if one party violates the settlement agreement, the other party can directly sue the court. Therefore, there is no need in the procedural law. Provision for this. my country's civil procedure law subdivides the settlement in litigation into litigation settlement and enforcement settlement. Regarding these two types of reconciliations, the laws and relevant judicial interpretations provide relatively rough rules.

Article 51 of the "Civil Procedure Law of the People's Republic of China" stipulates: "The parties can settle on their own." The Supreme People's Court (Provisions on Several Issues Concerning the Civil Mediation Work of the People's Court) implemented on November 1, 2004 Article 4 stipulates: "If the parties reach a settlement agreement on their own during the litigation process, the people's court may confirm the settlement agreement and prepare a mediation statement according to the parties' application. The period during which both parties apply for an out-of-court settlement shall not be included in the trial period." The second paragraph of this article also stipulates: "Where the parties apply to the people's court for coordination of the reconciliation activities during the reconciliation process, the people's court may appoint auxiliary trial personnel or invite or entrust relevant units and individuals to engage in coordination activities." Article 18 stipulates that: "The people's court shall not support the people's court in accordance with the content of the settlement agreement or the mediation agreement after the parties have settled on their own or reached an agreement through mediation."

Regarding the implementation of the settlement, Article 211 of the Civil Procedure Law stipulates that: during the execution, if the parties reach an agreement on their own reconciliation, the executor shall include the content of the agreement in the transcript, which shall be signed or sealed by both parties. If one of the parties fails to perform the settlement agreement, the people's court may resume the enforcement of the original effective legal document based on the application of the other party. Article 266 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" stipulates that: if one party fails to perform or does not fully perform the settlement agreement reached voluntarily during the execution, the other party applies for the execution of the original Where a legal document becomes effective, the people's court shall resume execution, but the executed part of the settlement agreement shall be deducted. If the settlement agreement has been fulfilled, the people's court shall not resume enforcement. Article 267 stipulates: "Applications for restoring the original legal documents shall be governed by the provisions of Article 219 of the Civil Procedure Law for the period of application for enforcement. The period of application for enforcement is terminated due to a settlement agreement in execution, and the period shall be self-conciled. Calculated continuously from the last day of the performance period specified in the agreement". Article 86 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Enforcement of People’s Courts (for Trial Implementation), which came into effect on July 18, 1998, stipulates that: “During enforcement, both parties can voluntarily reach a settlement agreement and change the effective legal document. The determined subject, subject matter and amount, performance period and method of performance", Article 87 stipulates: "If the settlement agreement reached between the parties is legal and effective and has been fulfilled, the people's court shall conduct enforcement and close the case." .

Judging from the above provisions, if the parties reach a settlement agreement during the litigation process, the case can be closed with the plaintiff withdrawing the case or applying to the court to prepare a mediation statement. If the plaintiff withdraws the lawsuit, if he is dissatisfied with the settlement agreement, he can sue again, and the settlement agreement is not enforceable; if both parties apply to the court to prepare a mediation statement, the mediation statement is legally effective after both parties sign and accept it, and appeals are not allowed. The settlement agreement in execution is also not enforceable. If the parties fail to perform the settlement agreement, they must continue to perform the original judgment. To sum up, as the basic law of our country, the "Civil Procedure Law" has only one right provision for reconciliation in the process of litigation, and has not formed a system. This is the country's civil litigation legislation that needs to be improved vigorously.

The reconciliation system plays an important role in civil trials in contemporary society and is an inevitable requirement for the realization of diversified civil dispute resolution mechanisms and social stability and harmony.

(3) The value of the reconciliation system in contemporary civil trials

In those countries with specific reconciliation systems, reconciliation is divided into out-of-litigation reconciliation and in-litigation reconciliation. Out-of-litigation reconciliation is a private remedy for parties to resolve disputes and resolve conflicts before entering the litigation process, and there are fewer laws. , And there are more regulations on settlement in litigation (also known as settlement in litigation). Chinese scholars define it as: "The parties reached an agreement on the disputed issues in the case through negotiation in the civil procedure, and jointly stated the content of the agreement to the court. , A system that requires the end of litigation to end the litigation."

It is undeniable that in the dispute resolution mechanism, litigation has become the main means to contain and resolve social conflicts. However, when people today evaluate a certain level of social law or social order, the basic basis does not lie in the frequency of social conflicts in society. And the intensity lies in the ability of the society’s litigation system to resolve social conflicts and its effect. Therefore, in civil litigation, seeking a satisfactory resolution of disputes by facilitating voluntary reconciliation between the parties has become an important way to realize the rule of law and maintain social stability. This method of dispute resolution does not need to spend much time on evidence review, fact finding, and application of the law, nor does it require the parties to spend money to hire lawyers to handle complex litigation procedures. It can immediately enter the core of the dispute and reflect the parties more appropriately. The actual situation can play the inherent function of consensual dispute resolution, and can bring good social effects that the court's judgment cannot achieve. In general, the value of the litigation settlement system can be divided into external value and internal value.

In terms of external value, litigation reconciliation can simplify the litigation procedure and take care of the interests of both parties; it can also realize the value of justice while realizing the value of efficiency, make up for the rigid and lengthy defects of the trial procedure, and make up for the lack of procedures. Insufficiency, avoid the parties from falling into a disadvantaged position because they are not familiar with professional legal knowledge. In terms of intrinsic value, reconciliation in litigation can promote the establishment of a social credit system. As the product of the reconciliation between the parties, the settlement agreement has played a role in terminating the litigation, but it is not just a one-sheet agreement that can really resolve the conflicts between the parties. It also requires the parties to perform their own agreement in the settlement agreement in good faith. Obligations. As the saying goes, "people can't stand without credibility, industry can't thrive without credibility, and society can't be prosperous without credibility." In today's market economy, the establishment of a credit system is the inevitable development of a society ruled by law, and the reconciliation system fits this historical trend.

The reconciliation system has important value in civil trials in contemporary society and has become a consensus. However, there are still different opinions on the validity of the reconciliation agreement. The author will proceed from the settlement agreement reached in this case to discuss the effectiveness of the settlement agreement.

3. The validity of the settlement agreement

To study the validity of the settlement agreement, the nature of the litigation settlement behavior should be clearly defined in theory.

(1) The nature of litigation and settlement

Regarding the nature of litigation and reconciliation, academic circles generally have the following three views: (1) Private behavior theory. The settlement in litigation is a settlement in civil law concluded by the parties before the court. The effect of the termination of the litigation is explained by the elimination of the subject matter of the litigation or the withdrawal of the litigation by the parties. (2) The theory of litigation behavior. It is believed that litigation reconciliation is a litigation act completely different from reconciliation in civil law, and it is a procedural agreement recognized by law as an alternative to judgment. Therefore, it should have the same resilience and enforcement power as the court decision. (3) Two properties. It holds that litigation reconciliation has both the nature and elements of civil law reconciliation and litigation. It also includes the theory that the two coexist and the theory of single behavior.

The author believes that the nature of settlement should be understood from the perspective of litigation settlement as a method of dispute resolution. Litigation reconciliation and dispute resolution can be roughly divided into two stages. The first stage is the stage where both parties negotiate independently and reach an agreement with the support of the court. It is a manifestation of the free disposal of their civil rights and litigation rights by both parties. The second stage is when the parties present the settlement agreement or plan to the court, and the court confirms its validity after review. Without this stage, litigants would not need to seek court relief and directly sign a settlement agreement in private. Therefore, the author believes that litigation reconciliation should be a "litigation act", and the reconciliation agreement reached in the reconciliation should be an agreement confirmed by the public authority.

Litigation and settlement is a kind of litigation, so the validity of the settlement agreement refers to the issue of the enforceability of the settlement agreement.

(2) Enforcement of the settlement agreement

How effective is the settlement agreement reached as a kind of "action of litigation"? The author believes that this kind of litigation is based on the full autonomy of will between the parties as the prerequisite and condition, and there is no basis for the autonomy of will between the parties to reach an agreement. This kind of litigation reconciliation is meaningless, so it cannot be based on reconciliation. The agreement is produced on the basis of "action of litigation" and it is determined that it has absolute enforcement power, and the effect of the settlement agreement should be a "conditional enforcement power."

Regarding the conditionality of the enforceability of the settlement agreement. First, the parties can completely waive the right to continue the execution of the original judgment in the settlement agreement, and only use the agreement as the basis for execution, thereby giving the agreement its enforceability. The legitimacy of this approach is that based on the settlement agreement reached by both parties, on the one hand, the intervention of public power makes it effective; on the other hand, the public power also recognizes the waiver of the original judgment, not because Abandoning the execution of the original judgment will damage the authority of the judicial judgment. Second, if the parties in the settlement agreement did not agree to waive the right to continue the execution of the judgment, according to the provisions of the "Civil Procedure Law of the People's Republic of China", if one party does not execute the settlement agreement, the original judgment will continue to be executed, which can be considered as the failure of public power. The settlement agreement is confirmed to give up the original judgment, and the original judgment continues to be executed.

The "conditionality" of the compulsory force of the settlement agreement is also reflected in the question of whether the validity of the settlement agreement can prevent the appeal and retrial. The author once wrote in "People's Justice" that the effective judgment should be retrial after the implementation of the settlement. Because "what the parties express in the execution of the settlement is only the issue of the enforcement of the enforceable judgment, and does not mean that the parties agree to the judgment. That is to say, the parties do not agree to the judgment and cannot reach a settlement agreement, and the people's court can still follow Enforcement of the content of the judgment", if the original judgment is indeed wrong, it can be retrial according to the law, and the retrial is not prevented because of the appearance of the settlement agreement. This is also a manifestation of the "conditionality" of the mandatory power of the settlement agreement.

All in all, as a settlement agreement is a product of the parties’ consensus, the court should fully respect the parties’ decision in determining its effectiveness. This is conducive to the rapid and effective resolution of disputes, but in order to maintain procedural justice and better establish judicial authority. The effectiveness of the settlement agreement should be limited.

Four, conclusion

With the rapid development of the economy and society, there are more and more civil disputes concerning the economic interests of the parties. How to resolve disputes in a timely, effective and rapid manner, protect the vital interests of the parties to the greatest extent, and maintain the normal order of society has become before the judicial authorities. Important subject. Reconciliation, as a dispute resolution method that the Chinese nation has used for thousands of years, not only achieves the effective and thorough resolution of disputes, but also promotes the formation of a pluralistic dispute resolution mechanism in my country. Establishing and perfecting my country's civil reconciliation system at the institutional level will play a major role in improving the efficiency of judicial trials, establishing a good judicial image, enhancing the satisfaction of the parties in the trial of cases, and easing disputes and promoting social harmony.