（三）若法院抛开《调解协议书》审理原纠纷并另行判决侵权方承担责任，必然会损害人民法院调解工作的权威性和公信力
无论是在作为实体法的《民法典》还是程序法的《民事诉讼法》，诚实信用原则均系行为人或者诉讼参与人应该遵守的基本准则和规范。侵权方与受害方达成的《调解协议书》，实际上是对各自民事权益的处分，自协议达成后，对双方产生约束力，各自应当按约履行。在此情况下，若法院抛开《调解协议书》审理原纠纷并判决侵权方承担责任，实则是对《调解协议书》签订后一方的反悔行为加以鼓励和肯定，这并不符合法律规定，同时也是一种错误的价值导向。如此，越来越多的调解当事人将可能会抛弃诚实信用原则，在达成调解协议后仍然随意毁约，肆意对调解程序中的真实意思表示予以否认或抵赖，将调解参与各方的辛勤工作成果付诸东流。这必然将极大损害调解工作的权威性和公信力，不利于人民法院进一步完善民事诉讼程序繁简分流改革工作的开展，不利于矛盾纠纷多元化解决机制的建立。
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Discussion | Can the parties continue to sue
the court for the original dispute if the mediation agreement reached by the parties has not been judicially confirmed?
issue
In a case of infringement dispute, the injured party intended to sue the infringing party. After pre-litigation mediation by a specially-invited mediation organization appointed by the People's Court on the case before filing, both parties reached an agreement voluntarily on compensation matter after mediation. The Mediation Agreement was signed and fingerprinted by both parties, also stamped with the seal of the mediation organization and signed by the mediator. The Mediation Agreement specifies that " The agreement is a one-time termination agreement. After the signing of the agreement, no other disputes will arise between the parties, and neither party can renege." However, on the second day after the signing of the Mediation Agreement, the injured party reneged and refused to go through the judicial confirmation procedure of the Mediation Agreement based on the previous original agreement with the infringing party, and insisted on suing the infringing party with the original dispute，so requesting the court to file a case.
When the Mediation Agreement has been reached but not judicially confirmed, the injured party reneges and insists on suing the infringing party for the original dispute, should the People's Court accept the suit of the injured party and continue to trial of the original infringement dispute?
Opinion
For the injured party to insist on suing the infringing party with the original infringement dispute, the People's Court shall accept. But if the infringing party provides the Mediation Agreement for defense, the People's Court shall not support the claim of the injured party.
Analysis
1.The mediation agreement that has been reached is legally binding on both parties.
Article 119 of the Civil Code states that "A contract formed in accordance with law is legally binding on the parties to the contract." Article 29(2) of the People's Mediation Law clearly stipulates that "A written mediation agreement shall become effective from the date when the parties concerned affix their signatures, seals or fingerprints and the people's mediators affix their signatures and the seal of the people's mediation commission on it." Article 31(1) provides that "A mediation agreement reached upon mediation by a people's mediation commission is binding to all parties concerned, and the parties concerned shall fulfill it as agreed." Article 33 provides that after a mediation agreement is reached, when necessary, the parties concerned may jointly apply to the people's court for judicial confirmation within 30 days after the mediation agreement becomes effective, mediation agreements are enforceable after judicial confirmation. But the lack of judicial confirmation does not affect its establishment and validity. At the same time, Provisions of the Supreme People's Court on Specially-Invited Mediation by People's Courts (Law Interpretation [2016] No. 14, hereinafter referred to as "the Provisions on Specially-Invited Mediation") also provides in Article 23 and Article 24 that where a mediation agreement is reached through mediation by a specially-invited organization or specially-invited mediator, a mediation agreement may be prepared. Both parties and the specially-invited mediator shall affix their signatures, seals or thumbprints to the mediation agreement or mediation transcripts. Where a specially-invited organization presides over the reaching of the mediation agreement, the seal of the mediation organization shall also be affixed thereto. Where a mediation agreement is reached through appointed mediation, the mediation agreement shall come into force after both parties affix their signatures, seals or thumbprints to the mediation agreement. Therefore, whether according to the Civil Code, the People's Mediation Law or the Provisions on Specially-Invited Mediation, in the case that the Mediation Agreement has reached and effective, both parties shall perform the agreement reached which based on the principle of good faith. If the injured party unilaterally reneges the contract without the consent of the infringing party, it is a breach of contract.
2.In the case that the Mediation Agreement is objectively reached and legally valid, the injured party insists on suing the infringing party without legal basis.
The Mediation Agreement in question clearly states that "The agreement is a one-time final termination agreement. After the signing of the agreement, no other disputes will arise between the parties, and neither party can renege." At the same time, Article 25 of the Provisions on Specially-Invited Mediation states that " After a mediation agreement is reached through appointed mediation, the parties have any dispute over the performance of the mediation agreement or the contents of the mediation agreement, they may institute an action in the people's court, and the people's court shall accept it. one party brings a lawsuit to the people's court with regard to the original dispute, and the opposite party makes a defense on the basis of the mediation agreement, the mediation agreement shall be provided." Therefore, in the case of the Mediation Agreement has been reached and effective, if the injured party put aside the agreement to sue the infringing party with the original dispute but the infringing party provides the Mediation Agreement and expressly raises a defense, the People's Court shall not support the lawsuit filed by the injured party against the infringing party with the original dispute according to the aforementioned provisions of the law.According to this situation, the author has consulted judicial decision cases and found there are a large number of final court decisions that support the above analysis in judicial practice.
Case 1: Zhang Fuzhen and Xie Xiaochun's civil judgment of the second instance of dispute over right to life, the right to corporeal integrity, the right to health, Case No. (2019) E08 Civil Final No. 1050, judging points: “On the issue of whether Zhang Fuzhen can claim the damages he suffered. According to the Some Provisions of the Supreme People's Court on Trying Civil Cases Involving the People's Mediation Agreements Article 3, paragraph 3 that "one party brings a lawsuit to the people's court with regard to the original dispute, and the opposite party makes a defense on the basis of the mediation agreement, the mediation agreement shall be provided." The first trial held that the dispute between Zhang Fuzhen and Xie Xiaochun had been mediated by the People's Mediation Commission and the two sides reached a mediation agreement by consensus. Zhang Fuzhen and Xie Xiaochun signed and fingerprinted on the agreement, and the seal of the People's Mediation Commission of Longquan Street Office in Dongbao District, Jingmen City. The mediation agreement is legal, truthful and voluntarily reached by both parties, which is legally binding. This legal binding force makes the original dispute is no longer litigable, and the parties can only sue for the mediation agreement but not for the original dispute. Now Zhang Fuzhen sued again for the original dispute which violated the law. The first trial was not supported.” The second trial verdict affirmed the first trial verdict.
Case 2 : Zheng Guifang, Dingbian Branch of China Mobile Communications Group Shaanxi Company Limited, Dingbian Branch of Shaanxi Radio and Television Network Media Company Limited, Dingbian Branch of China United Network Communications Company Limited, Civil Judgment of Second Instance in the Dispute over Right to Health, Case No. (2019) Shaanxi 08 Civil Final No 2626, the judging points: “ On the question of whether the court of first instance was correct in ruling that Mobile Communications Dingbian Company was liable for Zheng Guifang's claim for damages……The appellant, Zheng Guifang, did not exercise any right of revocation or change to request to the above mediation agreement, again requested the appellant Mobile Communications Dingbian Company to bear the liability for tort compensation for bodily injury, which was contrary to its agreement to change the right to claim for tort compensation to the contractual right to contractual compensation, and obviously lacked factual basis and could not be established according to law. Article 1 of the Some Provisions of the Supreme People's Court on Trying Civil Cases Involving the People's Mediation Agreements that‘A mediation agreement which is concluded under the mediation of the people's mediation commission, contains contents of civil rights and obligations, and is signed or sealed by both parties, shall have the nature of civil contract. The parties shall perform their own obligations pursuant to the stipulations in the contract, and shall not unilaterally modify or rescind the mediation agreement.’ The court of first instance, in the lack of any disposition of the people's mediation agreement reached between the two parties, decided to reallocate the tort liability, which is not only inconsistent with the agreement reached by the parties, but also contrary to the above-mentioned provisions. It is obviously wrong to rule that Mobile Communications Dingbian Company should bear 80% of the compensation responsibility for Zheng Guifang's claim for damages.
Case 3: Qingzhen City Yan Yi Hua Cai Hotel Co. and Yang Jianhui Second Civil Judgment on Dispute over Sale and Purchase Contract, Case No. (2019) Qian 01 Civil Final No. 5741, judging points: The mediation agreement which reached through the mediation by the specially-invited mediator of the court of first instance with civil rights and obligations, and signed or sealed by both parties, has the nature of a civil contract. The parties shall perform obligations in accordance with the agreement and shall not change or cancel the mediation agreement without authorization. To reach a mediation agreement without judicial confirmation, the parties may file a lawsuit on the mediation agreement or the original dispute. Parties to the mediation agreement to file a lawsuit, the People's Court shall hear the content of the mediation agreement. If one party files a lawsuit with the original dispute and the other party does not object with the mediation agreement, the People's Court shall conduct a trial on the original dispute. If one party files a lawsuit with the original dispute and the other party objects based on mediation agreement, who shall submit the mediation agreement. The court shall review the mediation agreement. The mediation agreement shall be regarded as a collegial agreement on the original dispute again, which is civil contract. At this point, the mediation agreement is more effective than the original dispute.
3.If the court sets aside the Mediation Agreement to hear the original dispute and adjudicates that the infringing party is responsible, it will certainly undermine the authority and credibility of the People's Court's mediation work.
Both in the Civil Code as a substantive law and in the Civil Procedure Code as a procedural law, the principle of good faith is the basic rule and norm that should be observed by the actors or participants in litigation. The Mediation Agreement reached between the infringing party and the injured party is actually a disposition of respective civil rights and interests, which is binding on both parties since the agreement is reached, and each party should perform according to the agreement. Under this circumstance, if the court sets aside the Mediation Agreement and trails the original dispute and adjudicates the infringing party to be responsible, it is actually encouraging and affirming the renege behavior of one party after the signing of the Mediation Agreement, which is not in accordance with the law and is also a wrong value orientation. So more and more parties to mediation will probably abandon the principle of good faith, break the agreement at will after reaching the mediation agreement and wanton denial or repudiation of the true meaning of the mediation process, then the hard work of the parties involved in the mediation will be wasted. This will certainly greatly damage the authority and credibility of the mediation work, which is not conducive to the People's Courts to further improve the reform of the stream of civil proceedings and the establishment of a diversified mechanism for resolving conflicts and disputes.
If there is any inappropriate point in the article, please criticize and correct it.
