论我国诉讼外纠纷解决机制的完善

发布时间：2018-03-20 04:28

本文选题：诉讼外纠纷解决机制　切入点：意义　出处：《安徽大学》2012年硕士论文　论文类型：学位论文

【摘要】：在当前社会大变革时期,随着经济的快速发展,人与人之间的交往和联系增多,与此相对应,利益冲突和纠纷则呈现新型化、复杂化和多样化的特点。这导致了现有的司法资源难以满足大量纠纷解决的需要,加剧了法院的诉讼负担,当事人的诉求得不到满足,而诉讼外纠纷解决机制则可以有效缓解当前不断增加的纠纷数量和有限的司法资源之间的矛盾。各国的法律实践也证明了,单一的纠纷解决方式不能解决所有的社会纠纷,纠纷解决方式的选择应当根据纠纷的性质、双方的社会关系以及权利的大小来决定。当前,我国各地区也在尝试着构建多元化的讼外纠纷解决机制,以发挥非诉纠纷解决方式在解决特定纠纷上的优势,这些尝试也取得了一定的成效。但是我国的诉讼外纠纷解决机制还存在一些问题,如诉讼外纠纷解决机制没有形成一个统一的协调机制、诉调对接机制不健全、调解员的素质普遍较低等。为了使诉讼外纠纷解决机制能够更加快捷、高效地解决纠纷,必须要对诉讼外纠纷解决机制进行完善。个制度的建立,必然有它存在的价值所在,诉讼外纠纷解决机制同样也不例外。通过多年的实践,诉讼外纠纷解决机制的价值已经得到了人们的认可：它不仅有利于减少纠纷解决成本和有利于当事人意思自治权的体现,而且有利于和谐社会的构建。诉讼外纠纷解决机制在中国有着很深的历史渊源,调解被称为“东方奇葩”,起源于西周时期,现代的调解依然是我国重要的纠纷解决方式之一。同样的,仲裁、行政裁决等诉讼外纠纷解决方式也在社会纠纷的解决方面发挥了重要作用。但是,现存的诉讼外纠纷解决机制的缺陷在具体实践过程中也暴露了出来,这不利于诉讼外纠纷解决机制的可持续发展。纵观域外国家的法律发展史,非诉纠纷解决方式也是重要的解决纠纷办法。各个国家根据本国的实际情况,形成了各有特色的诉讼外纠纷解决机制,如日本的调停制度、英国的全国律师ADR网络和专业的纠纷解决机构等,对这些国家的诉讼外纠纷解决机制的研究,可以为我国的诉讼外纠纷解决机制的发展和完善提供有益的经验,避免他们在实践过程中出现的错误和弯路。我们应该以现有的纠纷解决资源为基础,借鉴域外国家有益的经验,根据我国的国情、社情,进一步完善我国的诉讼外纠纷解决机制,具体可以包括以下几个方面：一是建立专门的非诉讼纠纷解决机制的领导协调机构；二是健全非诉讼纠纷解决方式与法院诉讼的对接机制；三是培育和扶植专业的行业性纠纷解织；四是提高调解员的水平和素质,发挥律师的专业调解人的作用。
[Abstract]:In the current period of great social change, with the rapid development of the economy, the contacts and contacts between people have increased, corresponding to which conflicts of interest and disputes are emerging. The characteristics of complexity and diversification. This makes it difficult for the existing judicial resources to meet the needs of a large number of dispute resolution, exacerbates the litigation burden of the court, and the claims of the parties are not satisfied. The dispute settlement mechanism can effectively alleviate the contradiction between the increasing number of disputes and limited judicial resources. The legal practice of various countries has also proved that a single dispute resolution method cannot solve all social disputes, and the choice of dispute settlement method should be determined according to the nature of the dispute, the social relations between the two parties and the size of the right. Various regions of our country are also trying to build a diversified mechanism for resolving disputes outside litigation in order to give full play to the advantages of non-litigation dispute resolution in resolving specific disputes. These attempts have also made some achievements. However, there are still some problems in the dispute settlement mechanism outside litigation in our country, such as the non-litigation dispute settlement mechanism has not formed a unified coordination mechanism, the mechanism of litigation mediation and docking is not perfect. The quality of mediators is generally low. In order to solve disputes more quickly and efficiently, it is necessary to perfect the dispute resolution mechanism outside litigation. The establishment of this system is bound to have its value in existence, and the mechanism for resolving disputes outside litigation is no exception. Through years of practice, The value of the dispute settlement mechanism outside litigation has been recognized by people: it is not only conducive to reducing the cost of dispute resolution and the realization of the autonomy of the parties, but also conducive to the construction of a harmonious society. The dispute settlement mechanism outside litigation has a deep historical origin in China. Mediation is called "Oriental Flower", originated in the Western Zhou Dynasty, and modern mediation is still one of the most important dispute resolution methods in China. Non-litigation dispute resolution, such as administrative adjudication, has also played an important role in the settlement of social disputes. However, the defects of the existing out-of-litigation dispute resolution mechanism have also been exposed in the concrete practice. This is not conducive to the sustainable development of the dispute settlement mechanism outside litigation. Throughout the history of the legal development of foreign countries, non-litigation dispute resolution is also an important method of dispute resolution. According to their actual conditions, each country has formed its own unique mechanism for resolving disputes outside litigation, such as Japan's mediation system. The ADR network of lawyers and professional dispute resolution institutions in the United Kingdom can provide useful experience for the development and improvement of the dispute resolution mechanism outside litigation in these countries, and the research on the mechanism of dispute resolution outside litigation in these countries can provide a useful experience for the development and improvement of the dispute resolution mechanism outside litigation in our country. Avoid the mistakes and detours they make in the course of practice. We should take the existing dispute resolution resources as the basis, draw lessons from the beneficial experiences of foreign countries, and further improve the dispute resolution mechanism outside litigation in our country according to our country's national conditions and social conditions. It can include the following aspects: first, the establishment of a special non-litigation dispute resolution mechanism of the leadership coordination mechanism, the second is to improve the non-litigation dispute resolution and court litigation docking mechanism; The third is to cultivate and foster professional disputes, and the fourth is to improve the level and quality of mediators and play the role of professional mediators of lawyers.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926

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