博弈论及其在法律谈判中的应用
发布时间：2018-10-31 14:28
【摘要】：法律谈判作为以意思自治为基础，谈判结果具有契约性的私力救济方式，正日益成为我国重要的纠纷解决机制之一。法律谈判表现为利益主体之间的交互式行为。只有对利益主体的行为进行科学的分析，才能构造出科学、有效的行为选择和理性决策。研究人类行为的博弈理论无疑是法律谈判的重要分析研究工具。本文尝试将博弈理论运用到法律实践中，运用博弈模型来描述法律谈判当事人的行为选择和行为结果，厘清行为与结果之间的逻辑关系，并尝试利用博弈理论中的均衡概念来探索法律谈判中当事人之间的最佳和解方式。 谈判的结果是由双方协商一致的协议或者合同来体现的。合同违约处罚条款的设置，是使双方遵守合同的约定履行义务，实现权利的重要保障。运用占优均衡理论，可以帮助当事人科学地分析双方关于违约损害赔偿和违约处理方式的约定对于合同当事人将来行为的约束，以及确定保证商事良性运作的违约成本的合理区间。 对于劳资赔偿纠纷、民事合同纠纷、侵权纠纷等民事类纠纷，轻微刑事案件和刑事自诉案件，当事人可运用扩展式博弈分析选择和解还是诉讼更能够满足心理预期，并且提供和解的合理议价区间供当事人参考，合理补偿受害人。当事人可以通过控制议价区间的变量在讨价还价中争取更多的利益。 当事人在合伙企业清算，未立遗嘱的遗产分割，离婚案件中婚姻存续期间夫妻共有财产的分配等有关财产估价和分配问题经常会产生纠纷。对于当事人而言，迅捷确认争议物品的归属，或者实现合理的分割，优效解决纠纷就是最大的利益。通过建立新的博弈规则，将讨价还价缩短到两个阶段，能够合理高效地确定财产的分割，保证双方当事人的利益，，使整个谈判更富有效率。 对于因若干个价值差异较小，或者价值无法估计，但对当事人而言却有特殊意义的物品或者事项的分配引致的纠纷，同样可以运用博弈理论来解决。通过设置博弈规则，保证双方能够诚实的表述自己的偏好，合理的分配特殊物品的所有权或事项的处置权。 本论文根据研究的问题按照一定的逻辑思路共分为四个部分。 引言：提出选题目的及研究意义，并在此基础上归纳了关于法律谈判以及博弈论的相关文献。 第一部分：阐述博弈论的一般理论，介绍该理论的发展历程、基本概念、分析基础，并且对标准式博弈和扩展式博弈做简要的比较分析。 第二部分：介绍法律谈判的概念、特征，并论述其现实意义及博弈基础。 第三部分：运用案例分析的方法讨论博弈论在法律谈判中的应用，研究内容包含四个部分：（1）运用占优均衡理论论述合同违约处罚条款的合理设置；（2）运用子博弈纳什均衡的原理分析当事人和解的议价区间；（3）通过设立两阶段讨价还价模型实现争议财产的合理估价和分割；（4）探讨运用博弈理论实现特殊物品所有权或者事项处置权的合理分配。
[Abstract]:As the basis of autonomy of autonomy, legal negotiation is becoming one of the most important dispute resolution mechanisms in our country. Legal negotiations act as an interactive act between stakeholders. Only by carrying out the scientific analysis of the behavior of the stakeholders can we construct scientific, effective behavior selection and rational decision-making. The game theory of human behavior is undoubtedly an important research tool for legal negotiation. In this paper, we try to apply the game theory to the law practice, use the game model to describe the behavior choice and behavior result of the legal negotiation party, clarify the logical relation between the behavior and the result, And try to exploit the equilibrium concept in the game theory to explore the best way of reconciliation among the parties in the legal negotiation. The outcome of the negotiations is a consensual agreement or contract. Now, the setting of the contract breach penalty clause is an important way to fulfill the obligations of the parties to abide by the stipulations of the contract and realize the right The application of the dominant equilibrium theory can help the parties to scientifically analyze the agreement between the parties about damages for breach of contract and the way of breach of contract on the future behavior of the parties concerned, and to determine the reasonable cost to guarantee the commercial benign operation Section. For civil disputes such as labor compensation disputes, civil contract disputes, infringement disputes and other civil disputes, minor criminal cases and criminal cases of self-prosecution, the parties may use extended game analysis to choose conciliation or litigation more fully Full-term psychological expectation and offer a reasonable bargaining interval for reconciliation for reference by the parties, reasonable To compensate for the victim. A party can gain a bargaining power by controlling the variable of the bargaining interval More benefits. The parties involved in the valuation and distribution of property, such as the allocation of property between the spouses during the liquidation of the partnership, the division of the estate, the division of the estate in the case of divorce, the distribution of the common property among the spouses during the marriage Often there is a dispute. For the parties concerned, quick confirmation of the attribution of the disputed items, or the realization of reasonable segmentation, good effect settlement. By establishing new game rule, the bargaining can be shortened to two stages, the division of property can be determined reasonably and effectively, the interests of both parties are guaranteed, "The negotiation is more efficient. For disputes arising from the distribution of items or matters of special significance for the parties due to the small differences in value, or the value cannot be estimated, the same is the same for the parties concerned," The game theory can be used to solve the problem. By setting game rules, the parties can express their preferences honestly and reasonably allocate special items. Title or matter of ownership or matter. This paper is based on the question of the study Some logical thinking is divided into four parts: the introduction: the purpose of choosing the subject and the research significance, and on the basis of it. The first part: expatiates the general theory of game theory, introduces the development course, basic concept and analysis basis of the theory, and A brief comparison and analysis of the standard game and the expanded game is presented in the second part: the introduction of the method The concept and characteristics of law negotiation are discussed and the realistic meaning and game basis are discussed. The third part: The application of game theory in legal negotiation is discussed by using case analysis method, and the research content includes four parts: (1) using the dominant equilibrium theory to discuss the reasonable setting of the contract default penalty clause; (2) analyzing the bargaining interval of the party settlement by using the principle of the sub-game Nash equilibrium; (3) communicating; To establish a two-stage bargaining model to realize the reasonable valuation and division of the disputed property; (4) discuss the transportation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-051
本文编号：2302529
[Abstract]:As the basis of autonomy of autonomy, legal negotiation is becoming one of the most important dispute resolution mechanisms in our country. Legal negotiations act as an interactive act between stakeholders. Only by carrying out the scientific analysis of the behavior of the stakeholders can we construct scientific, effective behavior selection and rational decision-making. The game theory of human behavior is undoubtedly an important research tool for legal negotiation. In this paper, we try to apply the game theory to the law practice, use the game model to describe the behavior choice and behavior result of the legal negotiation party, clarify the logical relation between the behavior and the result, And try to exploit the equilibrium concept in the game theory to explore the best way of reconciliation among the parties in the legal negotiation. The outcome of the negotiations is a consensual agreement or contract. Now, the setting of the contract breach penalty clause is an important way to fulfill the obligations of the parties to abide by the stipulations of the contract and realize the right The application of the dominant equilibrium theory can help the parties to scientifically analyze the agreement between the parties about damages for breach of contract and the way of breach of contract on the future behavior of the parties concerned, and to determine the reasonable cost to guarantee the commercial benign operation Section. For civil disputes such as labor compensation disputes, civil contract disputes, infringement disputes and other civil disputes, minor criminal cases and criminal cases of self-prosecution, the parties may use extended game analysis to choose conciliation or litigation more fully Full-term psychological expectation and offer a reasonable bargaining interval for reconciliation for reference by the parties, reasonable To compensate for the victim. A party can gain a bargaining power by controlling the variable of the bargaining interval More benefits. The parties involved in the valuation and distribution of property, such as the allocation of property between the spouses during the liquidation of the partnership, the division of the estate, the division of the estate in the case of divorce, the distribution of the common property among the spouses during the marriage Often there is a dispute. For the parties concerned, quick confirmation of the attribution of the disputed items, or the realization of reasonable segmentation, good effect settlement. By establishing new game rule, the bargaining can be shortened to two stages, the division of property can be determined reasonably and effectively, the interests of both parties are guaranteed, "The negotiation is more efficient. For disputes arising from the distribution of items or matters of special significance for the parties due to the small differences in value, or the value cannot be estimated, the same is the same for the parties concerned," The game theory can be used to solve the problem. By setting game rules, the parties can express their preferences honestly and reasonably allocate special items. Title or matter of ownership or matter. This paper is based on the question of the study Some logical thinking is divided into four parts: the introduction: the purpose of choosing the subject and the research significance, and on the basis of it. The first part: expatiates the general theory of game theory, introduces the development course, basic concept and analysis basis of the theory, and A brief comparison and analysis of the standard game and the expanded game is presented in the second part: the introduction of the method The concept and characteristics of law negotiation are discussed and the realistic meaning and game basis are discussed. The third part: The application of game theory in legal negotiation is discussed by using case analysis method, and the research content includes four parts: (1) using the dominant equilibrium theory to discuss the reasonable setting of the contract default penalty clause; (2) analyzing the bargaining interval of the party settlement by using the principle of the sub-game Nash equilibrium; (3) communicating; To establish a two-stage bargaining model to realize the reasonable valuation and division of the disputed property; (4) discuss the transportation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90-051
【参考文献】
相关期刊论文 前1条
1 刘同君;;论法律谈判的理念及其实践把握[J];江苏科技大学学报(社会科学版);2009年03期
本文编号：2302529
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