The diversified dispute resolution (DDR) in China is different from the alternative dispute resolution (ADR) in Western countries with respect to its fundamental cause and political, economic, social, and cultural backgrounds. To better understand the DDR, the academic community shall go beyond the superficial feature of “distributing the burden of litigation” of the ADR in Western countries and consider it as the basic institutional arrangement and regular governance practice of state governance. Furthermore, we can adjust and reorganize the DDR based on such understanding. Specifically, after understanding the general features of dispute resolution forms, we should mobilize, aggregate, integrate, and use the dispute resolution resources in a society to improve and expand non-litigation dispute resolution forms and increase the overall supply of dispute resolution resources. Understanding the real features of disputes in China and its specific demands for dispute resolution. guide or regulate the choice of dispute resolution forms for the parties to a dispute through reasonable system design, so that the dispute resolution demands and dispute resolution forms can be matched. In particular, the Communist Party of China (CPC) and Chinese governments should play the leading and organizing role in the DDR, to comprehensively improve the effectiveness of the “Pluralistic-Unity-Style” dispute resolution.
As the idea of diversified dispute resolution becomes common sense, the structural relations of different dispute resolution mechanisms have become the focus of practice reforms and theoretical controversies in China. The 60-year development of the “Fengqiao Model” has always focused on the overall design of the dispute resolution system, which provides a foundation and plenty of materials for understanding these structural relationships. Combined with the development of social theory, this paper summarizes a general structural theory of dispute resolution mechanisms based on the “Fengqiao Model.” This theory advocates that the structure of dispute resolution mechanisms is the outcome of the integration of state intervention, social self-regulatory, and their interactions with various dispute resolution mechanisms. It can be used to explain the formation and change of the dispute resolution system in China, the structural strain in recent years, the overall plan of structural adjustment since 2012, and the next strategic core of profound adjustment. It also can be used to explain why the “Fengqiao Model” is so persistent and widely applicable, and how the “Fengqiao Model” be converted from a local model to an overall requirement, showing the great meaning of adhering to and developing the “Fengqiao Model” at present.
Internet courts in the 1.0 era achieved initial success in “online trial” and facilitation of the people’s access to judicial services, yet lacked the particularity that special courts should have in terms of organization, cases and procedures, making them difficult to fulfill the function of governance of network society. Compared with rule and management, governance has the features of decentralization, broad scope, and co-construction of rules. Features of network society are in line with the structure of social governance theory. To fulfill their function of governance of network society, internet courts in the 2.0 era, as the integrator of multiple centers and cyberspace as well as the analyzer of internet rules, need to improve in terms of organization, cases and procedures: In terms of organization, consider upgrading internet courts to be intermediate courts and identifying them as cross-region courts in cyberspace; in terms of cases, redefine the essence and extension of “online cases” with elements including wholly cyberspace_x005f related civil and commercial dispute resolution, new business format management on internet platforms, and governance of data-related rights; and in terms of procedures, improve Internet courts’ case selection procedures, judgement effect extension procedures, investigation procedures for independent evidence collection of internet cases, and automatic enforcement procedures ensuring the instant enforcement of judgment, so as to promote a mature and complete legal framework for cyberspace governance.
With the continuous development of China’s market economic system， the arbitration judicial review system based on the Arbitration Law promulgated in 1994， including the dual-track review of foreign-related and domestic cases， and the dual-supervision on procedural and substantive matters， has shown some issues that need to be studied and solved in practice. On July 30, 2021, the Ministry of Justice officially announced the Arbitration Law of the People’ s Republic of China (Amendment) (Draft for Comment), which unified the provisions on setting aside domestic and foreign-related arbitrament, and partially revised the scope of judicial review. However, heated debate arose and many problems remained unsolved such as the setting of the scope of supervision on foreign-related arbitration cases, how to grasp the principles of procedural review, and how to place the substantive supervision after the dual-track systems were changed into unified ones. Based on the Draft for Comments, this paper analyzes several prominent issues at present, and puts forward suggestions such as expanding the criteria for identifying foreign-related factors, converging to the original supervision scope of foreign-related arbitration, adhering to the principle of procedural review, and permitting the parties concerned to agree on the scope of supervision to maximize respect for the autonomy of the will of parties, so as to build a judicial supervision mechanism for commercial arbitration better fitting into the era.
The proposition of a diversified dispute resolution mechanism is mainly to realize the reasonable diversion of cases and promote the substantive resolution of disputes. Under this framework, all dispute resolution mechanisms must strictly follow the basic judicial principles and norms and abide by the bottom line of justice in the subjects and procedure of “dispute resolution” in order to gain the trust of the concerned parties. It is necessary to fully activate and give full play to their own characteristics and advantages and carry out the equal and orderly competition in the “diversified mechanism” to ensure that the concerned parties’ right of free choice can be substantially expanded. As one of the components of the “diversified dispute resolution mechanism,” the administrative reconsideration system should have the dual aspects of judicialization and administerization. The two aspects are not in a diametric opposition or trade_x005f off relation, but rather, they merely differ in observation perspectives, zone of action and specific direction to such an extent without compromising their coexistence and reciprocal promotion. Only by the judicalization and administerization of the administrative reconsideration system can we get it out of the current dilemma and gradually turn it into the main channel to solve administrative disputes.
The report to the 20th National Congress of the Communist Party of China put forward a scientific and systematic theory of the Chinese path to modernization, in which the modernization of the rule of law is both an integral part and a strong guarantee. Building a modern socialist country in all respects under the rule of law requires attention to the settlement of civil and commercial disputes. The separation of civil society and the political state, along with their mutual influence, has led to the development of diverse dispute-resolution mechanisms. Globalization has further accelerated their development and transformation. In face of the adjustments to the dispute resolution system amid the unprecedented changes of the century, China should complete the top-level design of the diversified settlement of civil and commercial disputes by deploying legislative and judicial resources to enhance the leading role of litigation in resolving these disputes. At the same time, China should continue to prioritize alternative dispute resolution mechanisms, improve the credibility of arbitration, and leverage the aggregating power of mediation, so as to serve the construction of the Chinese path to modernization.