THE STATE AND SOCIAL INTERMEDIATION (MEDIATION) IN TRADITIONAL CHINA
Journal: BULLETIN OF KEMEROVO STATE UNIVERSITY. SERIES: HUMANITIES AND SOCIAL SCIENCES
Volume 1 № 3
, 2017
Rubrics: JURISPRUDENCE
Authors:
1.
Kemerovo State University
Kemerovo, Russian Federation
Kemerovo, Russian Federation
Type:
Article
Pages:
from 72
to 77
Status:
Published
Received:
18.12.2017
Accepted:
18.12.2017
Published:
18.12.2017
Language:
Russian
Keywords:
tradicionnyy Kitay, social'noe posrednichestvo, mediaciya, «neznachitel'nye voprosy», traditional China, social intermediation, mediation, «minor issues»
Abstract (English):
The main aim of the article is to study the relationship of the institutions of social intermediation and state bodies in traditional China in the process of regulation of civil legal disputes. The law instructed judges to deal with property disputes of private individuals in person (i. e. «minor issues»); however, they thought it possible to intervene in a conflict only when all possible ways of mediation had been exhausted. The intention of the plaintiff to apply to the court immediately could be stopped by the judge's decision to transfer the civil case into a criminal one, which would threaten the plaintiff with serious adverse consequences. If the case was considered by the judge, his decisions, as a rule, were based on the Confucian principle of « ren » (humanity) and not law. Guided by this principle, the court could decide in favor of the debtor, even if his guilt was obvious before the creditor. In addition, the main method of punishment of the debtor was furtigation, which could not guarantee the performance of his obligations. In this regard, most Chinese citizens, regardless of their social status, preferred to refrain from applying to court with their civil cases. The most promising variant for them was the institute of social intermediation (mediation), represented by village headmen ( ts’ilao ) and rural police ( t’ipao ), «noble (perfect) men» ( chüntzu ) and representatives of the «scientific order» ( shênshih ), etc. State control over their brokerage activities was carried out through a system of collective responsibility paochia, and the hsiangpao , who was elected by community members and approved by the local judge. Developing ancient folk traditions, the institute of mediation at the legislative level in contemporary China is recognized as an important form of regulation of civil legal relations, existing in the form of national, commercial, administrative and labor intermediation, the main purpose of which, as in ancient times, is social harmony and stability in the country.
The main aim of the article is to study the relationship of the institutions of social intermediation and state bodies in traditional China in the process of regulation of civil legal disputes. The law instructed judges to deal with property disputes of private individuals in person (i. e. «minor issues»); however, they thought it possible to intervene in a conflict only when all possible ways of mediation had been exhausted. The intention of the plaintiff to apply to the court immediately could be stopped by the judge's decision to transfer the civil case into a criminal one, which would threaten the plaintiff with serious adverse consequences. If the case was considered by the judge, his decisions, as a rule, were based on the Confucian principle of « ren » (humanity) and not law. Guided by this principle, the court could decide in favor of the debtor, even if his guilt was obvious before the creditor. In addition, the main method of punishment of the debtor was furtigation, which could not guarantee the performance of his obligations. In this regard, most Chinese citizens, regardless of their social status, preferred to refrain from applying to court with their civil cases. The most promising variant for them was the institute of social intermediation (mediation), represented by village headmen ( ts’ilao ) and rural police ( t’ipao ), «noble (perfect) men» ( chüntzu ) and representatives of the «scientific order» ( shênshih ), etc. State control over their brokerage activities was carried out through a system of collective responsibility paochia, and the hsiangpao , who was elected by community members and approved by the local judge. Developing ancient folk traditions, the institute of mediation at the legislative level in contemporary China is recognized as an important form of regulation of civil legal relations, existing in the form of national, commercial, administrative and labor intermediation, the main purpose of which, as in ancient times, is social harmony and stability in the country.
Keywords:
tradicionnyy Kitay, social'noe posrednichestvo, mediaciya, «neznachitel'nye voprosy», traditional China, social intermediation, mediation, «minor issues»
tradicionnyy Kitay, social'noe posrednichestvo, mediaciya, «neznachitel'nye voprosy», traditional China, social intermediation, mediation, «minor issues»
