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Abstract:
Victim-offender mediation is widely recognized as a viable alternative to more traditional and repressive responses to crime. As part of the restorative justice movement, victim-offender mediation has achieved widespread attention in many countries. However, its development has followed different courses in Germany, Taiwan, and China – a situation mirrored in divergent terminology: “Täter-Opfer-Ausgleich” (Germany), “victim-offender mediation” (Taiwan), and “reconciliation in criminal matters” (China). In this volume, “mediation in criminal matters” is used as an umbrella term for all restorative institutions. On the one hand, the author identifies significant variations in legislation, with a comprehensive legal framework and widespread acceptance of victim-offender mediation in Germany versus substantial restrictions in Taiwan and China. On the other hand, it is also shown that German public prosecutors are over cautious when it comes to referring cases to mediation agencies, whereas Taiwanese and Chinese public prosecutors have demonstrated enthusiasm to employ mediation more frequently, despite different goals motivating its use in both contexts. These sharp contrasts provide the fertile basis for this comparative research.
The Chinese have a well-known pervasive preference for mediation as a means of dispute resolution. Deeply rooted in Confucianism, particularly in its ideal of harmony, mediation has been employed to resolve disputes for centuries. Theoretically, this “cultural preference for mediation” ought to offer highly favorable conditions for the promotion of victim-offender mediation. However, there is a remarkable difference between the restorative institutions in the criminal justice systems in Taiwan and China. The author demonstrates how the legal framework and criminal policy of each jurisdiction play a decisive role in the implementation of restorative institutions.
This volume aims to analyze the preconditions – from the viewpoint of the public prosecutor – that are required for an extensive application of victim-offender mediation in both Taiwan and China. The analysis is based on three components: First, the author explores how mediation in traditional Taiwanese and Chinese criminal procedure differs from mediation in the context of restorative justice (i.e., victim-offender mediation). Second, based on an in-depth comparison of the different legal regulations and practices in the German, Taiwanese, and Chinese legal systems, the legal conditions that account for the enormous differences are explained. Third, the author argues that the German legal model of victim-offender mediation can offer sound guidance to Taiwan and China and analyzes how it could be helpful in reforming Taiwanese and Chinese criminal law. The author concludes by offering legislative recommendations for Taiwan and China to improve their modern restorative justice programs.
