As a low-cost dispute settlement method, legal negotiation is gradually recognized and accepted by us. Therefore, it is necessary for us to think deeply about how to understand the localization of legal negotiation in China, the nature of legal negotiation and the negotiation agreement reached through legal negotiation.
Legal negotiation in European and American countries, it refers to the out-of-court benefit game implemented by lawyers and negotiation skills after comprehensive evaluation of various possible consequences through legal knowledge and litigation experience. When legal negotiations are translated and introduced into China, it is necessary for us to think seriously about them.
According to the general understanding, negotiation is an act and process for people to reach consensus through consultation in order to coordinate the interests of each other and meet their needs. Negotiation is an issue we cannot avoid. It exists in all aspects of our life and work. At present, one of the more professional negotiations is business negotiations. Legal negotiation is also one of the professional negotiations. The direct reason for negotiation is that the parties involved in the negotiation have their own needs, or an organization they represent has some needs, and the satisfaction of the needs of one party cannot ignore the needs of the other party. Therefore, the main purpose for both parties to participate in the negotiation should not only be based on the pursuit of their own needs, but also through the exchange of views for consultations, so as to jointly seek a solution to the problem acceptable to both parties.
In the United States and the United States, "legal negotiation" mainly involves the parties and their legal negotiation lawyers in legal negotiation. After a comprehensive evaluation of the possible consequences of court proceedings with legal knowledge and litigation experience, the parties can use lawyer skills and legal negotiation skills to achieve the settlement of disputes for negotiation purposes. The subject of legal negotiation is the person and his lawyer. When it was introduced to China, there was no authoritative definition of "legal negotiation", so the concept of "legal negotiation" was popular but vague in China. In our country, if there are negotiation lawyers participating in legal negotiation, but if there is no lawyer participating in legal negotiation, is the negotiation to solve the dispute of legal problem called legal negotiation? When a concept is introduced in countries with different systems, what it really means is often different, but when a concept or term, especially a social science term, is introduced, it is necessary to localize it, and legal negotiations are of course disproportionate. We cannot exactly copy the Anglo-American concept of "legal negotiation".#p#分页标题#e#
First, British and American countries are case law countries. The legal system of British and American countries and the legal system of mainland China belong to two different legal systems. The Anglo-American law system, also known as the common law system, has the tradition of precedents. Case law is its formal legal source, that is, the precedents of the superior court are binding on the lower court in the trial of similar cases. In the developed countries of Britain and the United States, there are a large number of cases, which the ordinary people cannot easily master, and they have to rely on professional lawyers for litigation and legal negotiation.
Second, the main defense system of British and American countries is confrontation system. On judicial system, in the judicial system design, the British and American countries the main defense system is the adversary system, also called "debate", which is using in civil cases and criminal cases of the public prosecutor and the defendant lawyer in a court of law against each other, put forward their own evidence, ask witnesses, questioning witnesses, on the basis of mutual debate, the judge chaired the hearing, and make a judgment on both sides debate and dissent, but not active investigation, only ACTS as a negative moderator role. It can be seen that in the UK and the us, dispute settlement cannot be achieved without lawyers, especially legal negotiation.
However, when it is introduced into China, whether the legal negotiation must involve lawyers, and whether our "legal negotiation" should be the same as that of the British and American countries, which requires lawyers to participate in legal negotiation. The author thinks that any negotiation based on law should be legal negotiation, not limited to lawyers' participation. Because our country is a written law country, ordinary people can find relevant legal regulations just like lawyers if they want to, and there is no need to look for legal basis in countless cases like common law countries.
Therefore, in the indigenization of "legal negotiation" in China, the author believes that the negotiation based on facts and with law as the criterion should belong to legal negotiation.
Legal negotiation is an act of out-of-court settlement with the ultimate aim of reaching a settlement agreement and negotiating an agreement. As negotiations to resolve the dispute by party law is not beyond the law free agreement between the parties, but on the premise of according to law, confirm the relevant legal fact, by the parties concerned or the agent, the use of legal knowledge and experience of litigation for a variety of possible consequences to conduct a comprehensive evaluation, and with the help of a personal action skills and negotiation skills and implementation of the game, eventually find interests balance, to achieve an optimal solutions to problems. With the development of non-litigation dispute settlement system, out-of-court settlement also rises and develops. Through legal negotiation, both parties measure their interests and find the best interest balance point in the negotiation process, so as to achieve the maximum win-win result in the sense of both parties. At present, ADR is being taken seriously by our country. Legal negotiations as an out-of-court settlement will also be taken seriously.#p#分页标题#e#
The so-called private relief means that when the parties consider that their rights and interests have been infringed, they do not go through the legal organs and procedures without the neutral intervention of a third party in the dispute settlement process, but rely on their own and private power to achieve the dispute settlement, including coercion and negotiation. Legal negotiation is an act of private relief, which is the relief method chosen by the parties themselves. As a private remedy, it is the best way to settle disputes through legal negotiation. Private relief is precisely because it is cheaper, more convenient, faster and more effective for the parties to protect their rights, so they choose private relief instead of public relief. The remedies through legal negotiation can more reasonably assess the possible results if litigation is used to resolve disputes. In this way, on the basis of equality, both parties of the dispute trust each other, understand each other, measure the interests of both sides, and reach the most reasonable legal solution to the dispute.
Legal negotiation is based on facts and takes law as the criterion. The negotiation of law belongs to the action of the parties to punish their own private interests, which belongs to the autonomy of will. Both parties to the negotiation adopt the civilized and rational way of confrontation, and independently choose the dispute settlement mode through voluntary negotiation and consultation, which is the manifestation of the parties' autonomy of will. Through the communication between both parties, through careful negotiation and communication, both parties agree to maximize their interests and achieve win-win results. In the process of negotiation, both parties' will is free, the way of communication and negotiation is free, and the way of delivery and execution is also free. Therefore, the autonomy of will is an indispensable theoretical basis and primary condition for legal negotiation. In the process of legal negotiation, we should respect the personal right choice of the parties and their expression of intention.
A negotiated agreement is a contract. Since both parties choose disputes through voluntary negotiation and consultation, the negotiation agreement reached through legal negotiation is actually a contract signed by both parties. Of course, the agreement signed by both parties should conform to the provisions of law. General civil and minor criminal cases can be negotiated through legal negotiations to sign the negotiation agreement. When the negotiation agreement is signed, both parties should follow the principle of equality and voluntariness. At present, our country is in the period of social transition, all sorts of contradictions is relatively concentrated, the emergency obvious increase in social production, life, legal behavior is a kind of settlement negotiations, but the law talks is not ordinary reconciliation act, but a serious talks by use of legal knowledge after settlement behavior, is a measure of interest, of course, both parties through final settlement. For resolving disputes through legal negotiation, we should strongly advocate such kind of negotiation through legal negotiation to reach a negotiation agreement to resolve disputes.#p#分页标题#e#