Rule of law and harmony

——To change the mediation of the Supreme People's Court judgment together

Harmony is an ideal life state coveted by human society. In the eyes of Western philosophers, it is a blueprint of an "ideal country" described by Plato and others; in the context of China, it not only shows a gentle, gentle, harmonious, and coordinated social state, but also means a This kind of reconciliation, clarification and resolution of disputes, conflicts and contradictions and the results.

1. The case

From 1988 to 1994, China Construction Bank and Synthetic Fiber Factory signed a total of 10 loan contracts, and the fiber factory obtained 15.47 million yuan of loan principal based on the 10 contracts. On May 13, 1997, the tire factory issued the "Repayment Plan for the Bank Loan of Our Factory Merged Fiber Factory" to the Construction Bank, stating that according to the Guofa (1997) No. 10 document and the provisions of the Provincial Economic and Trade Commission, the municipal government’s decision, Approved by the factory's workers' congress, the factory agreed to merge the fiber factory and set out a repayment plan of 15.47 million yuan. The tire factory merged with the fiber factory on May 16, 1997. The tire factory is a large-scale national key industrial enterprise. When the fiber factory was merged, it was an enterprise that suffered losses for three consecutive years and overdue loans for more than two years, and it was indeed difficult to return the principal and interest of the loan. The merger agreement between the two parties stipulates that the tire factory will merge the fiber factory, and the tire factory will occupy all the assets of the fiber factory and assume all the credits and debts of the fiber factory. On May 31, 1997, the China Construction Bank provided a format contract. The China Construction Bank and the Tire Factory signed the serial numbers Xie Zi (97) 03, (98) Jiandong 016, (98) Jiandong 017 and (98) The 4 "Debt Transfer Agreements" of Jiandong 018 stipulate: 1. According to the National Enterprise Merger and Bankruptcy and Workers Reemployment Leading Group No. 97(2) "National Enterprise Merger and Bankruptcy and Workers Reemployment Work Plan" and tire factory and In the fiber factory merger agreement, the tire factory agreed to take over the debt the fiber factory owed to China Construction Bank (a total of 15.47 million yuan). 2. According to the relevant regulations of the State Council, China Construction Bank agreed to exempt the synthetic fiber factory's original loan interest owed to China Construction Bank until the end of the repayment plan. 3. During the planned repayment period, the Construction Bank agreed to exempt interest on the loan principal of the synthetic fiber plant received by the tire company in accordance with the relevant regulations of the State Council. 4. The tire factory must actively repay the loan in accordance with the installment repayment plan. If the tire factory does not repay the loan in full according to the installment repayment plan, the construction bank has the right to stop the interest on the part of the loan owed according to the regulations. The interest calculation will be resumed on the same day, and the interest rate will be implemented in accordance with the original loan contract interest rate, plus penalty interest and compound interest. Among them, the repayment period of 380,000 yuan stipulated in the Xie Zi (97) No. 03 Agreement is May 31, 2000; (98) The repayment period of 1.85 million yuan stipulated in the Jiandong Agreement No. 016 is May 31, 2000 Day; (98) The repayment period of 800,000 yuan agreed in the Jiandong 017 Agreement was May 31, 2000; (98) The repayment period of 12.44 million yuan agreed in the Jiandong No. 018 Agreement was May 2000 40,000 yuan was returned on 31st, 3.1 million yuan was returned on May 31, 2001, 3.1 million yuan was returned on May 31, 2002, 3.1 million yuan was returned on May 31, 2003, 3.1 million yuan was returned on May 31, 2004 . The "Debt and Credit Transfer Agreement" does not include any "interest suspension" except for the "exemption" and "exemption" provisions mentioned above. In October of the same year, the tire factory was transformed into a tire company as a whole. In 1998, the tire company newly established Jingwei Chemical Fiber Company (hereinafter referred to as Jingwei Company).

In November 1999, China Construction Bank transferred its 15.47 million yuan loan and interest claims to the original fiber factory to Cinda, and notified Jingwei and Tire Company. The creditor’s rights transfer agreement signed by China Construction Bank and Cinda stated that “the borrower’s original Synthetic Fiber Factory as of September 20, 1999’s loan credit principal amounted to 15090000 yuan; interest receivable in the account was 10767409.39 yuan; of which, 10767409.39 interest receivable had been written off. yuan". The tire company failed to repay the arrears according to the agreement. On June 12, 2001, Cinda Company issued a dunning notice made to the borrower's tire factory (fiber factory) to Jingwei Company, and Jingwei Company signed and sealed the notice. On May 8, 2002, Cinda received a repayment of 10,000 yuan from Jingwei Company. As the obligor, the tire company never knew about this, nor did it ratify it afterwards. On March 10, 2003, Cinda delivered a notarized notice to the tire company to terminate the four "Debt Transfer Agreements" signed between the tire factory and China Construction Bank on May 31, 1997.

Cinda Company sued the People’s Court on March 7, 2003 on the grounds that the tire company did not pay the penal arrears, requesting that the tire company be ordered to repay its loan principal of 15.47 million yuan and interest of 425.6485852 million (the interest is temporarily calculated to December 20, 2002). The author accepted the entrustment of the tire company and participated in the first instance, second instance and retrial of this case as its agent. The court of first instance accepted the author's agency opinion based on investigation and evidence collection, and did not support the plaintiff's claim. After the judgment of the first instance, Cinda Company refused to accept it and appealed to the Supreme People's Court. The amount of principal and interest requested was consistent with that of the first instance. The court of second instance overturned the facts found by the court of first instance and made a finding almost completely different from that of the court of first instance. The different determinations of the two trials mainly focused on whether the interest during the repayment plan period was exempted and the claims under the three agreements (98) Jiandong No. 016, (98) Jiandong No. 017 and Xie Zi (97) No. 03 Whether the statute of limitations has expired on these two key issues.

First, on the issue of whether the interest owed by the original debtor to the synthetic fiber factory and the tire company's interest during the repayment plan period are exempted. The court of first instance held that: in accordance with the State Council Guofa (1997) No. 1 "Supplementary Notice on Trial Implementation of State-owned Enterprise Mergers and Bankruptcies and Reemployment of Employees in Certain Cities", refer to the People’s Bank of China, the State Economic and Trade Commission, and the Ministry of Finance (1995) No. 130 "Notice on Encouraging and Supporting Advantageous State-owned Enterprises in 18 Pilot Cities to Merge State-Owned Enterprise Production Enterprises in Difficulties in the Treatment of Bank Loans and Interests", the interest within the repayment period agreed in the agreement shall be exempted. The interest after the expiration of the performance period shall be calculated and paid in accordance with the relevant regulations of the People's Bank of China on overdue payments.

The court of second instance held that: Although the four "Debt Transfer Agreements" signed by China Construction Bank and the tire factory agreed that China Construction Bank agreed to waive the loan interest during the repayment period of the original debt owed by the fiber factory, it also agreed that if the tire factory does not Repay the loan in full according to the installment plan. For the part that is overdue, China Construction Bank has the right to resume interest calculation on the part of the loan owed from the date of interest suspension. The interest rate will be implemented in accordance with the original loan contract interest rate, and penalty interest will be added. And compound interest. Because the tire factory did not repay the debts owed to China Construction Bank in full in accordance with the amortization plan stipulated in the above-mentioned "Debt and Credit Transfer Agreement", according to the content agreed by both parties, the unpaid part shall resume counting from the date of interest suspension. interest. That is to say, the tire company shall repay the principal and interest of the owed amount at the interest rate agreed in the original loan contract. The original court found that the interest within the repayment period agreed in the agreement should be exempted improperly, and this court shall correct it according to law. Except that Jingwei Company repaid 10,000 yuan on behalf of the tire company in May 2002, the tire company failed to repay the rest of the amount. Therefore, the tire company should repay the 15.46 million loan principal and interest in accordance with the agreement between the two parties (during the loan contract period) The interest is calculated according to the interest rate agreed in the loan contract; the loan contract expires to the date of payment in accordance with the standard of the People’s Bank of China for overdue payments in the same period.

Second, regarding the issue of whether the creditor's rights under the three agreements (98) Jiandong No. 016, (98) Jiandong No. 017 and Xie Zi (97) 03 have exceeded the statute of limitations. The court of first instance held that: the repayment period of the three payments was May 31, 2000. After the three payments were due, there was no evidence to prove that Cinda Company paid the tire factory and tire company for two consecutive years. After claiming the rights, the two parties did not reach a new repayment agreement on the payments involved in the 3 agreements. Therefore, Cinda filed a lawsuit with this court on March 12, 2003, claiming that the rights to the 3 payments have exceeded the statute of limitations. During the period, the court did not support his request. Cinda received 10,000 yuan from Jingwei Company on May 8, 2002, which is not in the same legal relationship with the case, and this court will not handle it in this case.

The court of second instance held that: the existing evidence proves that Cinda had issued two "Loan Collection Notices" on June 12, 2001 with the debtor being the tire factory, respectively, to the tire factory and China Construction Bank for the debt principal of 15.47 million yuan and its The corresponding interest was collected. According to Article 140 of the "General Principles of the Civil Law of the People's Republic of China", "the statute of limitations is suspended due to the filing of a lawsuit, the request of one of the parties or the consent to perform the obligation. From the time of suspension, the statute of limitations period is recalculated" The statute of limitations for the above-mentioned debts has been suspended. The Tire Company's subsidiary, Jingwei Company, signed and sealed the aforementioned "Loan Collection Notice" not only did not affect the determination of the suspension of the statute of limitations, but it also proved that Cinda Company claimed its claims during the statute of limitations. . When Cinda filed a lawsuit with the original court on March 7, 2003, none of the aforementioned debts exceeded the statute of limitations. The court of the original trial on the three agreements (a total of 3.03 million yuan) involved in the (98) Jiandong No. 016, (98) Jiandong No. 017 and Xie Zi (97) 03 Agreements) has not claimed against the tire company after the expiration of the creditor’s rights. The right, the determination that the statute of limitations has expired is inconsistent with the facts, this court shall correct it according to law.

The second-instance judgment deviated from the legal concept of fairness and justice and the value pursuit of the rule of law in terms of fact finding and application of law. It caused great harm and loss to the parties represented by the author, and it was also not conducive to social harmony. After the judgment of the second instance was made, the tire company applied for retrial. The Supreme People’s Court attached great importance to it, and on December 5, 2005, it issued (2004) Min Jian Zi No. 340 Civil Ruling, deciding to retrial the case.

Taking into account the stability and harmony of the society, the Supreme People’s Court in the retrial of the case followed the "Regulations on Several Issues in Civil Mediation by the People's Court" (hereinafter referred to as the "Mediation Regulations") promulgated by the Supreme People's Court on September 16, 2004. With the consent of both parties, the case was settled through mediation on December 19, 2005: The tire company paid 19 million yuan to the Zhengzhou Office of Cinda Company and was responsible for the case execution fee and 300,000 yuan case acceptance fee; the remaining costs , Which was borne by the Zhengzhou Office of Cinda Company, and Cinda Company also filed an application for unblocking deposits of 45 million yuan and an application for termination of execution to the Henan Provincial Higher People’s Court.

In this case, the reason why the Supreme People’s Court accepted the tire company’s application and decided to retrial was based on the erroneous understanding and correction of the second-instance judgment of this court, the affirmation and acceptance of the tire company’s application for retrial, and the fairness and justice of the society. Advocate and pursue. The author will discuss the second-instance judgment of the Supreme People's Court below.

2. Problems in the second instance judgment

The author believes that the second-instance judgment has certain problems in the repayment period of the principal and interest of arrears, whether the arrears interest is exempted, and the determination of the statute of limitations.

(1) The issue of the time limit for repayment of principal and interest in arrears

The second instance verdict that the tire company should repay the principal and interest of the amount owed in accordance with the original loan contract and the standard of the People’s Bank of China for overdue payment in the same period until the date of repayment, which exceeds the scope of the litigation of the parties and violates the civil procedure law "no litigation and no action" The basic principle of "infringes the party’s right of disposal in civil litigation.

Article 13 of the Civil Procedure Law of China expressly stipulates: "The parties have the right to dispose of their own civil rights and litigation rights within the scope provided by the law." In this case, Cinda, as the plaintiff and appellant, always claimed 15.47 million yuan in the litigation. Principal and interest as of December 20, 2002. However, when the court of second instance ruled that the tire company should repay the principal, it also ruled that the interest should be paid until the date of repayment. That is, the calculation period for the tire company to repay the interest far exceeds the scope of the claim of the plaintiff who is the party to the litigation (that is, the deadline of December 20, 2002), which accumulates more than two years of interest.

German jurist Carl Heinz Schwab said: “Only the parties involved can introduce the disputed facts into the procedure and judge whether the court is necessary to make a decision on it, and the parties have the right to request the court to make a decision; as a procedural norm, The court itself does not consider the facts that neither party has presented, and shall not actively collect or review any evidence based on its own judgment.” In civil litigation, the content of the principle of the right of disposition of the parties is not only the principle of the parties’ autonomy, but also implies "Self-responsibility" and self-acceptance of risks, so the court relied on its authority to intervene to transfer risks from the "weak party" he considers to the "strong party", which will make this principle lose the value foundation of equality and autonomy.

With the major changes in China’s economic system and the development of an equal and autonomous commodity economy, the society as a “living space dominated by non-state rights” has begun to recover. The conflicts brought about by diversified interests require that the parties in disputes be given a more independent subject status. . If judges as neutral referees rely on or rely on their state power to decide matters that should be self-determined by the parties, not to mention the damage to the parties’ independent litigation subject status, it will also cause a disconnect between the civil procedure law and the substantive law, causing society The occurrence of inequities.

The court of second instance changed the scope of litigation claims by the parties without authorization, causing the retrial applicant to pay more than two years of interest to the retrial respondent for no reason, and even the retrial respondent did not claim this. As a neutral referee, the court of second instance, in the name of "fairness", obviously favors one side of the balance in its hands. It is difficult to convince the public of the justice of the law, which damages the authority of justice and harms harmony. The pursuit of fairness and justice in society.

(2) Whether the interest on arrears is exempted

The court of second instance re-decided whether the interest owed by the merging company (the original debtor) and the loan principal received by the tire company were exempted from the interest during the planned repayment period. This determination is contrary to the facts. The judge distorted the meaning of the autonomy contract between the parties with his own value judgment, and violated the relevant laws.

First of all, Article 2 of the four debt transfer agreements signed by both parties clearly states: "Party A (the original creditor) agreed to exempt Party B (synthetic fiber factory) from owing Party A until 2000. Interest up to May 30. “At the same time, Article 4 stipulates: “During the planned repayment period, the loan principal is exempt from interest.” According to Article 105 of the Contract Law of the People’s Republic of China: “The creditor exempts the debtor in whole or in part In the case of debts, the contractual rights and obligations shall be partially or completely terminated." Exemption is a unilateral civil act, and the legal consequences of the absolute elimination of the creditor’s rights will occur once the creditor makes it. Therefore, "repayment on time" is not an effective condition for the payment of "interest exemption", and the failure of the applicant for retrial to repay on time does not affect the effect of the exemption clause. The second-instance court’s judgment only determined from a single clause of the entire contract signed between the parties, “If the tire factory does not repay the loan in full according to the installment plan, the Jiaodong Branch and Jiaoxi’s The branch has the right to resume interest calculation on part of the loan owed from the interest suspension date in accordance with the regulations. The interest rate shall be executed in accordance with the original loan contract interest rate, plus penalty interest and compound interest.” The judgment was that “the original trial court determined that (98) Jiandong No. 018 Agreement stipulated It is improperly determined that the interest should be exempted within the repayment period, and this court shall correct it". This practice of "seeing a glimpse but not seeing the whole leopard" obviously violates the legality principle of legal interpretation, conflicts with the clear provisions of the Contract Law, and obviously violates the principle of rationality of legal interpretation when signing contracts with people Conflicting trading habits.

Secondly, in accordance with the State Council’s "Supplementary Notice on Trial Implementation of State-owned Enterprise Mergers and Bankruptcies and Reemployment of Employees in Certain Cities" (i.e. Guofa (97) No. 10), Article 9 on intensifying policies to encourage mergers "The application of the relevant corporate merger policies can be extended to: the merger and the merged enterprise belong to the large and medium-sized key enterprises determined by the State Council, and the state encourages superior enterprises to merge difficult enterprises..., the merged enterprise bears all the debts of the merged enterprise, among which, banks Debts can enjoy the preferential interest exemption and annual principal repayment in accordance with the spirit of the "Notice of the People's Bank of China, the State Economic and Trade Commission, and the Ministry of Finance on Encouraging and Supporting Loans and Interest Issues in 18 Pilot Cities" Yinfa (1995) No. 130 。 Advantageous companies merge companies that have suffered losses for three consecutive years, upon approval by the bank, the original loan interest owed by the merged company can be exempted; the original loan principal owed by the merged company can be repaid in 5 years. If there are still difficulties in repaying the principal within 5 years, A grace period of 1 to 2 years is granted. During the grace period, the original loan principal of the merged company is interest-free, and the part of the loan that cannot be repaid according to the agreed plan will be restored to interest." The reviewer is a large national key industry. Enterprises should enjoy this preferential policy, and the content of the stipulated exemption of interest is consistent with the content of the agreement on the transfer of claims and debts, but the court of second instance ignored this fact and deprived the legal policy of the right to apply for retrial. This approach of the court of second instance also violates the principle of unification of the legal system. It separates the interpretation of the contract from the relevant laws, regulations, and rules, and undermines the unification of the legal system. If a country is judged on behalf of national rights, Judgments made can be unruly and lawless, so it is difficult to guarantee social fairness, justice and harmony.

Finally, the main basis for the claimant’s claim for retrial-the creditor’s rights assignment agreement signed in November 1999 clearly stipulates that Party A (the original creditor) will transfer the borrower’s original synthetic fiber factory’s creditor’s rights as of September 20, 1999 The principal is 150.9 million yuan; the interest receivable in the account is 10767409.39 yuan; of which, the interest receivable is 10767409.39 yuan to be written off. According to Article 9 of the State Council (97) No. 10: "The loss caused by interest exemption shall be written off in the bank's bad debt reserve. If the bad debt reserve is insufficient, it can be written off with the bad debt reserve." It can be seen that the corresponding write-off behavior is the exemption of interest. The content of "Interest Receivable Has Been Written Off" indicates that the original creditor bank has fulfilled the agreement on exemption of interest and interest exemption in the creditor's rights, debt agreement, and also implemented the State Council (97) No. 10 regulations. In addition, the creditor’s rights and debt transfer agreement was signed on May 31, 1997, stipulating that the first repayment date of the applicant for retrial was May 31, 2000, and the Jianyu Jiao 0006-1 creditor’s rights transfer agreement was signed in November 1999. As of September 20, 1999, all the interest receivables have been written off. Now that the banks have performed the contract by "writing off the interest receivables", how can they say "repay on time" as the court of second instance accepted. "Fund" is the effective element of the "interest exemption" clause? Obviously here, the court of second instance ignored the fact that the bank had written off the interest receivable, and mechanically believed that the conditions attached to the contract had not been fulfilled, and the contract had not yet taken effect and should not exempt the retrial applicant from the interest during this period.

(3) Limitation of Actions

The court of second instance held that in determining whether the statute of limitations was interrupted: "Existing evidence proves that Cinda issued two "Loan Collection Notices" on June 12, 2001 that the debtor was a tire company. The Dong Branch and Jiaoxi Branch’s debt principal amounting to 15.47 million yuan and the corresponding interest were collected. According to Article 140 of the “General Principles of the Civil Law of the People’s Republic of China”, “the statute of limitations is due to the filing of a lawsuit and the request or consent of one of the parties Discontinued in fulfilling obligations. From the time of suspension, the statute of limitations has been recalculated.” The statute of limitations for the above-mentioned debts has been suspended. This determination violates the people’s court’s ruling principle that “facts are the basis and the law is the criterion” in the judicial judgment process. Incorrect.

We know that during the suspension of the statute of limitations, a request by one of the parties should mean that the obligee directly makes a request to the obligor to perform its obligations. However, in this case, although Cinda’s Zhengzhou Office issued two "Loan Collection Notices" with the heading "Borrower Tire Factory (Fiber Factory)" in 2001, the notice did not provide any repayment. The obligatory tire company sent it directly to Jingwei, a subsidiary of the tire company, and Jingwei signed and sealed the two receipts. However, the tire company, as the obligor, never knew about this, nor did it entrust Jingwei to sign for it. However, the court of second instance held that Jingwei Company and Tire Company are the same thing, and issued a notice to Jingwei Company that the act of Jingwei Company’s signing is that the tire company signs for the agreement, and assumed that “the second-level legal person enterprise Jingwei Company of Tire Company is in the above " The act of signing and sealing on the “Dunning Notice” not only does not affect the determination of the suspension of the statute of limitations, but also proves that the Zhengzhou Office of Cinda Company asserted its claims during the statute of limitations.” However, the “Company Law” expressly stipulates that The legal status of the company is equal to the legal status of the parent company. Each has an independent legal personality, and there is no evidence that the fiber factory as a subsidiary in this case is the legal representative of the parent company’s tire factory, and there is no evidence that it is the parent company. The tire factory once authorized the fiber factory to subscribe to the "receipt notice" of the promise bank on its behalf, but the court of second instance did not follow the law and firmly determined that the behavior of the subsidiary was the behavior of the parent company, and the commitment of the subsidiary was equivalent to the parent company. The company’s acknowledgment constitutes the reason for the suspension of the statute of limitations. The reason given by the court of second instance is that "the value of justice is higher than the value of efficiency." Perhaps some of them think that only by breaking through the law’s statute of limitations system at this time, can the second-instance appellant be better relieved and the “fairness and justice” of the society can be better realized. "Justice" is not the true fairness and justice pursued by the entire society.

Regarding the essential issue of the statute of limitations system, the author believes that it is nothing more than making the most appropriate choice among the two opposing orders and conflicting interests, which is based on the rights and obligations of the claimant to the obligor. The old order and the new order based on the dormant state of rights formed by the possessor’s long-term negligence in exercising rights. In these two orders, legislators stipulated the statute of limitations system. The reason for choosing the latter is to make the new society Order meets the requirements of social development and should be respected rather than arbitrarily distorted by judges. This is also conducive to the promotion of production and economic development, is conducive to the timely, correct and effective handling of civil disputes by the people’s courts, and is conducive to maintaining social stability , Not just as some judges think, it is as simple as preventing rights from sleeping, nor can it simply be said that in a case, the efficiency value of the law is selected and the justice of the law is violated by following the legislator’s statute of limitations system. value. If, under any circumstances, the value of justice overrides the value of efficiency, the value of legal order is likely to be lost, and the social legal system is likely to fall into chaos due to the lack of uniformity and clarity, and it is likely that "there is no law". , "Lack of law enforcement".

The efficiency value of law and the value of justice are not diametrically opposed. Only by adjudicating cases in accordance with the law and efficiently can the justice be better reflected. Only by respecting the people's choice of the value of the law and efficiently allocating legal resources can the justice be better reflected. Only by urging the perpetrators to actively exercise their rights can they realize the value of legal order and maintain social harmony and stability.

In order to completely resolve the case and also take into account the special circumstances of the case, the Supreme People's Court made a bold attempt during the retrial process and finally closed the case through mediation. However, there are still different opinions in the academic circles as to whether mediation can be applied in the retrial.

3. Application of mediation in the retrial process

The mediation in the retrial was a bold attempt by the Supreme People's Court, and it was also the Supreme People's Court's self-correction of its wrong judgment in the second instance. This mediation was fully recognized by both parties and achieved good social effects. However, there are different opinions as to whether it is appropriate to apply mediation in the retrial process. The retrial judges of the Supreme People's Court, based on the purpose of correcting errors and maintaining judicial justice, have told the world with practical actions that the application of the mediation system in the retrial can effectively guarantee Disputes are resolved in a timely manner, so that all parties have their own interests, so that contradictions can be effectively and thoroughly resolved in the process of full consultation, and society can achieve full harmony when contradictions are resolved.

Some scholars' opinions on the inapplicability of mediation in retrials are mainly based on the following reasons: From a practical point of view, since the winning party usually does not agree to abandon the benefits gained by winning, mediation in retrial cases is generally unlikely; From the perspective of procedural law, a court judgment that has already become legally effective cannot be changed without statutory procedures. Therefore, a judgment that is changed through the consent of the parties is not allowed by res judicata, and it also undermines the authority of the court. At the legislative level, the initiation of the retrial procedure means that the original trial court’s judgment is indeed wrong. At this time, if both parties are allowed to change the original judgment by consensus, its legitimacy cannot be judged at all. This will not only initiate the retrial procedure. The legitimacy of the trial has become a problem, and it is difficult to realize the legislative purpose of supervising trial supervision through retrial to correct errors in the effective judgment. Although these different opinions have certain merits, as far as procedural legal obstacles are concerned, mediation in the Supreme Court's retrial is not to deny the validity of the second-instance judgment based on the agreement of the parties, but to reach a mediation by the Supreme Court. On the basis of the agreement, a legally valid mediation statement is made to deny the wrong judgment in the second instance. The mediation statement and the judgment have the same legal effect. This approach is a self-denial on the basis of fully respecting the autonomy of the parties’ will, not in line with the theory of res judicata The contradiction does not compromise the stability of the law and the authority of the court.

Retrial cases are often more complicated, controversial, deep contradictions, longer duration, and a wide range of aspects. If they are not handled well, they can easily intensify social conflicts. From the perspective of long-term retrial practice, the actual existence of court mediation Undoubtedly, good results have been achieved. Retrial cases closed through mediation can often truly resolve contradictions, promote harmony, and fulfill the demands of both parties. Based on the above considerations during the retrial process, the Supreme People’s Court boldly tried to close the case by mediation in this case, which also reflects the important efforts made by the Supreme People’s Court to improve the litigation mechanism to promote a harmonious society under the new situation. It will certainly create a good judicial environment and a stable and harmonious social environment for China's comprehensive construction of a well-off society.

In the above, the author wants to analyze the mistakes made by the second-instance court in the judgment of a case that I have handled through mediation in the retrial of the Supreme People’s Court. Social conflicts are controlled to a minimum and social harmony is achieved. If you want to achieve the unity of the legal and social effects of the judgment, you must strictly implement judgments based on the facts and the law, and truly achieve judicial justice. . During the retrial process, the Supreme People’s Court, on the basis of fully respecting the wishes of the parties, boldly attempted to close the case by mediation and in this way to correct its mistakes in the second-instance adjudication will have a positive significance for the construction of our judicial environment and the construction of a harmonious society. .

To sum up, harmony is the fundamental reason why the Supreme People's Court chose to close the case by mediation in the retrial. It is the main theme of this case. From this perspective, this case has realized the full combination of rule of law and harmony to a certain extent.

4. Rule of Law and Harmony

A harmonious society must be a democratic society under the rule of law, which is based on democracy and characterized by the rule of law; a harmonious society must be a fair and just society, and fairness and justice should become the mainstream value of society; a harmonious society It must be an honest and friendly society that inherits the traditional value element of the Chinese nation from generation to generation; a harmonious society must be a vibrant society, which will help stimulate the driving force of the entire society; a harmonious society , It must be a stable and orderly society, everyone can reasonably predict the consequences of his behavior when choosing his own behavior, so as to ensure his own safety; a harmonious society must also be a harmonious coexistence of a person and nature Society, this is not only for the needs of contemporary people, but also for the sustainable development of a nation. But in the final analysis, the author believes that a harmonious society should be a society ruled by law, where the rule of law and harmony adapt to each other and promote each other.

To build harmony, the rule of law in society should at least include the following aspects:

(1) Harmony of the value of the rule of law. The concept of the rule of law is produced on the basis of adapting to the diversification of social interests and diversification of social needs. There is no need for the rule of law without conflict. As far as the substantive value of the rule of law is concerned, the rule of law uses the rationality of its rules to establish a balance among the conflicting values of justice and interest, fairness and efficiency, freedom and order, human rights and self-discipline. As far as the formal value of the rule of law is concerned, the rule of law is to use its technical rationality to realize the universality, consistency, stability and openness of the rules. Judges are not allowed to speculate about legislative intentions or even ruling the law freely. Only when the entity value and formal value of the rule of law are truly unified can the rule of law in the true sense be achieved.

(2) Rights and obligations in legal relations must be harmonious. The law regulates people's behavior and achieves the purpose of regulating social relations by stipulating people's rights and obligations. Under the state of the rule of law, every legal subject should have equal legal personality, that is, to enjoy the rights conferred by the law and perform the obligations stipulated by the law. The rights without obligations are not allowed, and they are not allowed to perform duties without enjoying rights. The harmony of rights and duties expresses a state of social equality, and the harmony of rights and duties is the basis of harmony under the rule of law.

(3) Rights and powers in legal relations must be harmonious. A country under the rule of law is to achieve harmony between public power and civil rights through legal regulation. The benefit resources of any country are limited and constant. When all the benefits or rights of citizens are delegated to the state to be represented and exercised, citizens no longer have rights and freedoms. The fewer social rights. We say that power comes from rights and its purpose is to serve rights. It is only a means to guarantee the realization of rights. In this sense, a country under the rule of law should be a country where power obeys rights. This is the essential issue of a society under the rule of law.

(4) Public power must be harmonious with each other in legal relations. This requires that the public authorities should perform their duties and supervise each other. They should not shirk each other in the face of difficult problems, and they should not compete with each other in the face of interests. They should exercise public power within the limits of the national political system to ensure the country’s political, economic and political The realization of social goals.

(5) There must be harmony between civil rights and rights in legal relations. This depends on the unity of individual freedom and autonomy, equality of all, and clear boundaries of rights.

(6) The rule of law must operate harmoniously. This kind of harmony reflects the dynamic harmony of the law, which includes five aspects: legislation, law enforcement, justice, law-abiding, and legal supervision. Especially in the judicial process, when the rights of citizens are violated and relief is urgently needed, it is effective Dispute resolution mechanism, fair justice can directly control conflicts and resolve social contradictions in the bud, which is conducive to the realization of people’s rights and interests and the stability of social order; and effective dispute resolution mechanisms and fair justice can also enhance people’s legal authority Trust enables the appeals and opinions of various interests to be equally and freely expressed and exchanged through normal and reasonable channels; effective dispute resolution mechanisms and fair justice can also make up for the injustice and unfairness caused by the lag of legislation , Become a powerful barrier to guarantee social harmony.

Fair justice is a basic requirement for realizing a country under the rule of law and a favorable guarantee for realizing social harmony. Judicial justice is embodied in each case through the fair rulings of the judicial organs. It includes not only the judicial justice of the entity, but also the judicial justice of the procedure. The most important and most direct purpose of litigation activities for litigants is to pursue a fair and just litigation result, which directly involves citizens' property, health, and right to life, so the judge must be selfless, upright, fair and just. Trial each case in a timely manner and maintain the fairness of the entity to the greatest extent.

The judicial activities of the judicial organs must also comply with the powers and procedures prescribed by the law, so that the judicial procedures also embody the principles of fairness, openness, democracy, rights protection, and efficiency. If the procedures are incorrect or violate the procedures, it is difficult to guarantee the justice of the entities. As Bacon pointed out: "One unfair (judicial) judgment is more misfortune than multiple unfair actions, because these unfair actions only mess up the water flow, and the unfair judgment corrupts the water source." However, in the process of substantive adjudication, especially in the process of handling civil and commercial cases, it is difficult to grasp the fairness of the substantive. When the court hears the case, the judgment may be unfair and cause harm to one party. The reasons are: First, the provisions of the substantive law are principled, abstract and even have legal loopholes. These give the judges great rights and discretionary space, making it impossible for the results of the judgment to make precise reasoning and reasoning like mathematics. In calculation, neutral referees have discretionary space and power, and it is difficult to guarantee that the balance in their hands will never tilt. Second, the fairness of the referee itself is mixed with some subjective factors and evaluation standards, and human cognition is limited, so the judgment of whether the result is fair is different from person to person. Judges are not perfect, nor are they masters in solving various cases or even a class of cases and various situations, so sometimes they will deviate from the law's intention to judge or even violate the law, leading to some unfair results. Third, a fair judgment is based on the premise of the correctness of the facts. However, the facts are all past facts that have occurred, and all kinds of evidence must be used to achieve and prove the truth of the facts. Judges' judgments on evidence are also restricted by their judgment ability and judgment standards, so that their determination of facts and judgments based on them will inevitably have certain limitations and ambiguities. Therefore, judges must overcome the above difficulties and try their best to achieve justice in judicial judgments. Fair judicial judgments are the cornerstone of establishing a society under the rule of law, and also the cornerstone of establishing a fair and just harmonious society.

V. Conclusion

The author is gratified by the outcome of the mediation of this case. At the same time, in the process of this case, the author began to think about the relationship between the rule of law and harmony in Chinese society, and began to think about the significance of the mediation system in the retrial process to social harmony. In a country under the rule of law and harmony, people who pursue justice can always accept the judges who represent the country in front of the trial platform provided by the state power to use the law to make fair judgments on the right and wrong of their actions; in a rule of law and harmony In the country, people who believe in justice can always accept the torture of their conscience by a publicly-elected trial institution with universal value in front of the trial platform provided by the state power, and will reach a just result, so The author believes that in a country where judgments are truly based on "facts and the law", in a country where errors can be corrected when the court finds errors, in a country where dispute resolution mechanisms are diversified and resolution methods are flexible In many countries, the rule of law is constantly improving, and continuous improvement is the general trend, and the vision of social harmony is not far away!