Improving the preventive legal system-Pan Jianfeng

legal article


February 03, 2021

At the Central Committee’s Work Conference on Comprehensive Rule of Law, General Secretary Xi Jinping proposed to improve the preventive legal system, adhere to and develop the “Maple Bridge Experience” of the new era, and promote social harmony and stability. This has pointed out the direction for us to better prevent and resolve civil disputes and improve the modernization of social governance through various forms and channels.

There will be civil disputes if there are civil activities. With the development of human society, civil activities have become increasingly active, and civil disputes have also increased dramatically. There are many ways to resolve civil disputes, and judicial litigation is an important way. However, the social cost of litigation is higher. China has a large population. If all civil disputes are resolved in the form of litigation, the parties and judicial organs will have to bear higher dispute resolution costs. This will not only restrict the improvement of judicial effectiveness, but also be detrimental to timely repair of social relations and maintenance of social stability.

The preventive legal system is mainly a series of legal norms and systems formulated to prevent the occurrence of various contradictions and disputes. The “Maple Bridge Experience” of the new era is to focus on the use of a variety of social conflict resolution mechanisms to eliminate conflicts and disputes beforehand and resolve them at the grassroots level. China’s mediation system is a preventive legal system with Chinese characteristics, which is known as the “Eastern experience” for the resolution of conflicts and disputes. People’s mediators are rooted at the grassroots level, come from the masses, and are familiar with social conditions and public opinions. This helps to better meet the demands of the masses and prevent the escalation of social conflicts. In 2010, China promulgated the People’s Mediation Law. The mediation system meets the needs of economic and social development and has the advantages of simplicity, flexibility, universality, and autonomy. Continuously improving the mediation system in practice can better play its role in preventing the escalation of civil disputes and resolving social conflicts from the source.

To successfully resolve civil disputes, it is necessary to respect the wishes of the parties so that the process and results reflect social fairness and justice. The mediation system not only fully respects the wishes of the parties, but also reflects the requirements of social fairness and justice, and has unique advantages in resolving civil disputes. First, the parties voluntarily participate in dispute mediation and fully express their wishes. In the mediation process, the principles of fairness, justice and openness are implemented, and the parties are equal in status, are treated fairly in procedures, and opinions and demands are fully communicated and negotiated. With regard to the outcome of dispute resolution, the parties themselves consider their interests. If they accept it voluntarily in the end, it means that the parties believe that the mediation result is fair. In the new era, social interest relations are more complicated, and people’s yearning for a better life has become stronger. This requires continuous improvement and improvement of the mediation system to give full play to its important role in resolving social conflicts and disputes, especially in resolving civil disputes.

To establish and improve a preventive legal system, it is necessary not only to prevent the escalation of disputes, but also to prevent the occurrence of disputes. Legal systems such as the notarization system, legal advisor system, public lawyer system, and corporate lawyer system play an important role in preventing disputes. The main function of the notarization system is to enhance the power of proof. Legal documents, legal acts and legal facts that have been notarized are generally higher than other evidence. Therefore, fixing evidence and determining rights and obligations through notarization plays an important role in preventing disputes in advance. For example, notarization of major asset restructuring and mergers and acquisitions, financial derivatives transactions, notarization of intellectual property protection, notarization of property rights protection, notarization of family asset management, etc., are of great significance to avoid related disputes. Legal counsel system, public lawyer system, corporate lawyer system, etc., by allowing lawyers to provide professional legal opinions, enhance the legality, rationality, and operability of relevant decision-making, identify and eliminate various legal risks in advance, and effectively avoid disputes afterward. In the process of comprehensively governing the country by law, we should identify the focus of system construction, actively respond to the new requirements and expectations of the people, and improve the ability of the rule of law to ensure that the people live and work in peace and contentment, so as to continuously enhance the people’s sense of happiness and security.

(The author is the Dean of Peking University Law School)


Source: People’s Daily

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