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| Notice of the Supreme People's Court on Issuing Several Opinions on Further Implementing the Work Principle of “Giving Priority to Mediation and Combining Mediation with Judgment” | | 最高人民法院印发《关于进一步贯彻“调解优先、调判结合”工作原则的若干意见》的通知 |
(No.16 [2010] of the Supreme People's Court) | |
（法发〔2010〕16号） |
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government; the Military Court of the PLA; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region: | |
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院： |
We hereby issue Several Opinions of the Supreme People's Court on Further Implementing the Work Principle of “Giving Priority to Mediation and Combining Mediation with Judgment” to you for your earnest implementation in light of your actualities. | |
现将最高人民法院《关于进一步贯彻“调解优先、调判结合”工作原则的若干意见》予以印发，请各地结合实际，认真贯彻执行。 |
June 7, 2010 | |
二○一○年六月七日 |
Several Opinions of the Supreme People's Court on Further Implementing the Work Principle of “Giving Priority to Mediation and Combining Mediation with Judgment” | |
最高人民法院关于进一步贯彻“调解优先、调判结合”工作原则的若干意见 |
The work principle of “giving priority to mediation and combining mediation with judgment” is a scientific conclusion derived from seriously summarizing the practical experience of the people's justice and deeply analyzing the current situation and tasks, a carry-forward of the fine traditions of the people's judicature, and a development and innovation of the people's judicial theories and judicial system. So it is of great guiding significance to give full play to the positive role of the mediation work of the people's courts in the elimination of social conflicts, maintenance of social stability and promotion of social harmony. These Opinions are formulated for the specific purpose of further implementing this work principle. | |
“调解优先、调判结合”工作原则是认真总结人民司法实践经验，深刻分析现阶段形势任务得出的科学结论，是人民司法优良传统的继承和发扬，是人民司法理论和审判制度的发展创新，对于充分发挥人民法院调解工作在化解社会矛盾、维护社会稳定、促进社会和谐中的积极作用，具有十分重要的指导意义。为进一步贯彻该工作原则，特制定本意见。 |
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| I. Firmly establishing mediation awareness, further strengthening the consciousness of implementing the work principle of “giving priority to mediation and combining mediation with judgment” | | 一、牢固树立调解意识，进一步增强贯彻“调解优先、调判结合”工作原则的自觉性 |
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| 1. Deeply apprehending the importance of strengthening the mediation work of the people's courts in the new era. To comprehensively strengthen the mediation work is an inevitable demand for carrying forward the Chinese fine culture and developing the fine traditions of the people's judicature, an inevitable demand for exerting the political advantages of the socialist judicial system with Chinese characteristics, an inevitable demand for maintaining social harmony and stability, and an inevitable demand of giving full play to the functional role of the people's courts. | | 1、深刻认识新时期加强人民法院调解工作的重要性。全面加强调解工作，是继承中华民族优秀文化和发扬人民司法优良传统的必然要求，是发挥中国特色社会主义司法制度政治优势的必然要求，是维护社会和谐稳定的必然要求，是充分发挥人民法院职能作用的必然要求。 |
China is now at the stage of important strategic opportunities for economic and social development as well as the stage of prominent social conflicts, so the task of maintaining social harmony and stability is arduous. To deeply promote the three major tasks of eliminating social conflicts, updating social administration and building honest and clean law enforcement is an inevitable demand of fulfilling the historic mission of the people's courts under the new situation, an inevitable demand of the people's courts actively responding to the concerns of the people, and also the primary task of the people's courts in the current and future periods. “Giving priority to mediation and combining mediation with judgment” is not only an important principle of promoting the elimination of conflicts, but also an important content of updating social administration, as well as a test of judges' judicial capability. To deeply promote these three major tasks, we must resolutely implement this work principle, increasingly strengthen the mediation awareness, actively innovate the mediation mechanism, endeavor to improve the mediation ability, make great efforts to promote the construction of the “triune” big mediation system of people's mediation, administrative mediation and judicial mediation, effectively eliminate social conflicts, and truly realize the resolution of all disputes upon close of a case so as to provide more powerful judicial safeguard and service for guaranteeing the sound and fast economic and social development and maintaining social harmony and stability. | |
我国正处于经济社会发展的重要战略机遇期和社会矛盾凸显期，维护社会和谐稳定的任务艰巨繁重。深入推进社会矛盾化解、社会管理创新、公正廉洁执法三项重点工作，是人民法院在新形势下履行自身历史使命的必然要求，是人民法院积极回应人民群众关切的必然要求，也是当前和今后一个时期人民法院的首要工作任务。“调解优先、调判结合”既是推动矛盾化解的重要原则，也是社会管理创新的重要内容，又是对法官司法能力的考验。深入推进三项重点工作，必须坚决贯彻这一工作原则，不断增强调解意识，积极创新调解机制，努力提高调解能力，着力推动人民调解、行政调解、司法调解“三位一体”大调解工作体系建设，有效化解社会矛盾，真正实现案结事了，为保障经济社会又好又快发展，维护社会和谐稳定，提供更加有力的司法保障和服务。 |
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| 2. Firmly establishing the idea of “mediation first”. Mediation is a judgment of high quality and high effectiveness, and mediation ability is a high level judicial ability. Mediation is conducive to the elimination of social conflicts and the realization of the resolution of all disputes upon close of a case, conducive to the restoration of the relations among the parties concerned and the realization of harmony. The people's courts at various levels shall deeply apprehend the unique advantages and important values of mediation in the effective elimination of conflicts and disputes and in promoting social harmony and stability, practically transform the idea of attaching importance to judgment and neglecting mediation, take mediation as the first choice of handling cases, consciously and initiatively handle conflicts and disputes in the way of mediation, employ mediation through each stages of case filing, trial and execution, through the whole process of first instance, second instance, execution, retrial, appeal, letters and visits, extend the mediation subjects from the judges that hear the case to all members of the collegial panels, leaders of the tribunal and leaders of the entire court, gradually expand the scope of mediation, reconciliation and coordination cases from civil cases to administrative cases, private prosecuting cases, minor criminal cases, civil cases incidental to criminal cases, cases of state compensation and enforcement cases, and establish a full-dimensional mediation mechanism covering all fields of trial and execution. We shall do the mediation work with the sincere affection for the parties concerned and in the hope of solving problems and doing substantive work for the parties concerned. We shall conduct mediation wherever it works, and shall not miss any opportunity of mediation emerged in litigation and each stage before and after litigation so as to grasp all opportunities of settling a case through mediation as much as possible. | | 2、牢固树立“调解优先”理念。调解是高质量审判，调解是高效益审判，调解能力是高水平司法能力。调解有利于化解社会矛盾，实现案结事了，有利于修复当事人之间的关系，实现和谐。各级法院要深刻认识调解在有效化解矛盾纠纷、促进社会和谐稳定中所具有的独特优势和重要价值，切实转变重裁判、轻调解的观念，把调解作为处理案件的首要选择，自觉主动地运用调解方式处理矛盾纠纷，把调解贯穿于立案、审判和执行的各个环节，贯穿于一审、二审、执行、再审、申诉、信访的全过程，把调解主体从承办法官延伸到合议庭所有成员、庭领导和院领导，把调解、和解和协调案件范围从民事案件逐步扩展到行政案件、刑事自诉案件、轻微刑事案件、刑事附带民事案件、国家赔偿案件和执行案件，建立覆盖全部审判执行领域的立体调解机制。要带着对当事人的真挚感情，怀着为当事人解难题、办实事的愿望去做调解工作。要做到能调则调，不放过诉讼和诉讼前后各个阶段出现的调解可能性，尽可能把握一切调解结案的机会。 |
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| 3. Correctly apprehending and grasping the work principle of “giving priority to mediation and combining mediation with judgment”. We shall closely center on the target of “resolving all disputes upon close of a case” and properly handle the relations between mediation and judgment --- the two ways of trial. In the process of handling a case, we shall first consider mediation; we shall attach equal importance to both mediation and judgment. Whether it is mediation or judgment, it must be based on the effective elimination of conflicts and disputes, the promotion of social harmony and the ending of disputes so as to realize the dynamic unification of legal effects and social effects. We shall, based on the nature and specific circumstances of each case and the allegations of the parties concerned, scientifically grasp the basis and conditions for applying either mediation or judgment. We shall make our utmost efforts to apply mediation where it is possible; as for the cases to which mediation cannot possibly apply and in which mediation is not allowed by law, we shall make a judgment as soon as possible so as to give full play to the role of both mediation and judgment. We shall not only pay attention to correcting the practice of making hasty judgments regardless of the case-handling effects, but also to correcting the practice of unduly pursuing mediation rate and arbitrarily applying mediation regardless of the will of the parties concerned. We shall make efforts to realize the “two rises”: the rate of settling cases through mediation and the rate of willingly accepting the judgments, realize the “two falls”: the rate of cases involving lawsuit-related complaints and the rate of enforcement, promote the mediation work of the people's courts to reach a higher stage, and realize a new development. | | 3、准确认识和把握“调解优先、调判结合”工作原则。要紧紧围绕“案结事了”目标，正确处理好调解与裁判这两种审判方式的关系。在处理案件过程中，首先要考虑用调解方式处理；要做到调解与裁判两手都要抓，两手都要硬；不论是调解还是裁判，都必须立足于有效化解矛盾纠纷、促进社会和谐，定分止争，实现法律效果与社会效果的有机统一。要根据每个案件的性质、具体情况和当事人的诉求，科学把握运用调解或者裁判方式处理案件的基础和条件。对于有调解可能的，要尽最大可能促成调解；对于没有调解可能的、法律规定不得调解的案件，要尽快裁判，充分发挥调解与裁判两种手段的作用。既要注意纠正不顾办案效果、草率下判的做法，也要注意纠正片面追求调解率、不顾当事人意愿强迫调解的做法。要努力实现调解结案率和息诉服判率的“两上升”，实现涉诉信访率和强制执行率的“两下降”，推动人民法院调解工作迈上新台阶，实现新发展。 |
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| II. Improving the working system of mediation, doing a good job in the key links, and comprehensively promoting the mediation work | | 二、完善调解工作制度，抓好重点环节，全面推进调解工作 |
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| 4. Further strengthening the mediation of civil cases. The people's courts at various levels especially the grassroots courts shall take mediation as the first choice of settling a case and the basic working procedure of handling civil cases, first attempt to settle all civil cases which are suitable for mediation according to law and the nature of cases in the way of mediation, and employ mediation through the whole process and all links of the civil trials. | | 4、进一步强化民事案件调解工作。各级法院特别是基层法院要把调解作为处理民事案件的首选结案方式和基本工作方法。对依法和依案件性质可以调解的所有民事案件都要首先尝试通过运用调解方式解决，将调解贯穿于民事审判工作的全过程和所有环节。 |
Before starting a court session, we shall first conduct mediation with respect to marriage and domestic disputes, succession disputes, disputes over labor contracts, disputes over damages that result from traffic or work injury accidents and in which the rights and obligations are relatively clear, disputes over home sites and adjacent relations, disputes over partnership agreements and disputes in which the subject matter of action is of relatively small amount as prescribed in Article 14 of Several Provisions of the Supreme People's Court on the Application of Summary Procedures in the Trial of Civil Cases, except for those that are not suitable for mediation based on the nature of the cases and the actualities of the parties concerned or in which it is obviously not necessary for mediation. | |
对最高人民法院《关于适用简易程序审理民事案件的若干规定》第十四条规定的婚姻家庭纠纷、继承纠纷、劳务合同纠纷、交通事故和工伤事故引起的权利义务关系较为明确的损害赔偿纠纷、宅基地和相邻关系纠纷、合伙协议纠纷、诉讼标的额较小的民事纠纷，在开庭审理时应当先行调解。但是根据案件的性质和当事人的实际情况不能调解或者显然没有调解必要的除外。 |
We shall make great efforts to do a good job in the mediation of the following civil cases: cases concerning the people's livelihood and the group interests which require the cooperation of governments and relevant departments; mass cases which may affect social harmony and stability, class action cases, bankrupt cases; cases of civil disputes over private debts, marriage, family, succession, etc.; cases in which the circumstance is complex and neither party has preponderance of evidence; cases in which the parties concerned strongly hate each other; cases with certain difficulty in the application of law due to lack of provisions or lack of evident provisions governing it in the relevant laws and regulations; cases of which the judgments are difficult to be executed after they are made; sensitive cases which attract much attention from the society; retrial cases and petition cases filed in letters and paid visits in which the parties concerned have intense emotions and the conflicts are intensified. | |
要下大力气做好以下民事案件的调解工作：事关民生和群体利益、需要政府和相关部门配合的案件；可能影响社会和谐稳定的群体性案件、集团诉讼案件、破产案件；民间债务、婚姻家庭继承等民事纠纷案件；案情复杂、难以形成证据优势的案件；当事人之间情绪严重对立的案件；相关法律法规没有规定或者规定不明确、适用法律有一定困难的案件；判决后难以执行的案件；社会普遍关注的敏感性案件；当事人情绪激烈、矛盾激化的再审案件、信访案件。 |
No mediation is allowed for the cases that are governed by special procedures, the procedures for supervising and urging the clearance of debts, the procedures of public summons for exhortation and the procedures of bankruptcy liquidation, the cases of marriage and identity relationship confirmation as well as other civil cases which can not be mediated considering the nature of the cases as prescribed in Article 2 of the Provisions of the Supreme People's Court about Several Issues Concerning the Civil Mediation Work of the People's Court. | |
对最高人民法院《关于人民法院民事调解工作若干问题的规定》第二条规定的适用特别程序、督促程序、公示催告程序、破产还债程序的案件，婚姻关系、身份关系确认案件以及其他依案件性质不能进行调解的民事案件，不予调解。 |
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| 5. Actively exploring the mediation work and the reconciliation work of criminal cases. At the same time of punishing crimes according to law, we shall, in accordance with the requirements of the criminal policy of combining leniency with rigidity, unravel the misunderstanding and confrontation between the parties concerned and promote social harmony by means of active and effective mediation. | | 5、积极探索刑事案件调解、和解工作。要在依法惩罚犯罪的同时，按照宽严相济刑事政策的要求，通过积极有效的调解工作，化解当事人恩怨和对抗情绪，促进社会和谐。 |
We shall, in accordance with the relevant provisions of the Criminal Procedure Law, actively conduct mediation of private prosecution cases to promote reconciliation between the parties concerned of their own accord. If a reconciliation agreement is reached after the defendant pleads guilty, shows repentance, agrees to compensate for the victim's losses and is forgiven by the victim, the private prosecutor may withdraw the prosecution or the defendant may be imposed a mitigated, or be exempted from, criminal punishment. For a venial criminal case about a slight injury arising from a private dispute, if the parties concerned reach reconciliation after the case is brought to the court, the court shall approve it and keep it on record. The court may also offer to reconcile such cases under the precondition of not breaking the law. | |
要根据刑事诉讼法有关规定，积极开展刑事自诉案件调解工作，促进双方自行和解。对被告人认罪悔过，愿意赔偿被害人损失，取得被害人谅解，从而达成和解协议的，可以由自诉人撤回起诉，或者对被告人依法从轻或免予刑事处罚。对民间纠纷引发的轻伤害等轻微刑事案件，诉至法院后当事人自行和解的，应当准许并记录在案。也可以在不违反法律规定的前提下，对此类案件尝试做一些促进和解的工作。 |
As for civil suits collateral to criminal proceedings, we shall conduct active exploration in such aspects as mediation methods, ways of indemnity, the suitable time and term for mediation, the time limit for concluding a trial, etc., do our best to grasp all positive factors good for closing collateral civil proceedings through mediation, make efforts to reach a mediation agreement on civil compensation, and provide conditions for the correct application of law and the implementation of the criminal policy of combining leniency with rigidity. | |
对刑事附带民事诉讼案件，要在调解的方法、赔偿方式、调解案件适用时间、期间和审限等方面进行积极探索，把握一切有利于附带民事诉讼调解结案的积极因素，争取达成民事赔偿调解协议，为正确适用法律和执行宽严相济刑事政策创造条件。 |
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| 6. Making great efforts to do a good job in the coordination of administrative cases. At the same time of safeguarding and supervising the administrative organs to legally exercise administrative authorities according to law, we shall, pertinent to the characteristics of different cases, properly resolve administrative disputes through active and effective coordination and reconciliation. | | 6、着力做好行政案件协调工作。在依法维护和监督行政机关依法行使行政职权的同时，要针对不同案件特点，通过积极有效的协调、和解，妥善化解行政争议。 |
Under the precondition of not breaking the law, we shall, in addition to conducting mediation for cases of administrative compensation according to law, put emphasis on the coordination work when accepting cases about administrative ruling, administrative right affirmation, etc. rendered by administrative organs on civil disputes between equal subjects, about administrative punishments, administrative requisition, administrative compensation, administrative contracts, etc. within the scope of the discretion of the administrative organs, and cases in which the specific administrative acts are illegal or legal but not reasonable.
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在不违背法律规定的前提下，除了对行政赔偿案件依法开展调解外，在受理行政机关对平等主体之间的民事争议所作的行政裁决、行政确权等行政案件，行政机关自由裁量权范围内的行政处罚、行政征收、行政补偿和行政合同等行政案件，以及具体行政行为违法或者合法但不具有合理性的行政案件时，应当重点做好案件协调工作。
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