论人民调解与诉讼制度的衔接

发布时间：2018-07-14 09:23

【摘要】：现阶段,随着我国社会改革的不断发展,社会上的民间矛盾和纠纷不断涌现,各种各样的新型纠纷和案件数量呈几何式增长,令法院应接不暇,案件多人员少以及处理专业化极强案件的难度之大都成为了法院目前亟需解决的问题。自上世纪九十年代以来,社会调解与纠纷解决机制之间的矛盾日益加剧,一方面,以人民调解为代表的非诉讼纠纷解决机制逐渐衰落,而法院受理的诉讼案件却日益猛增,积案现象十分严重；另一方面,有限的司法资源又无法满足及时解决日益增长的民间纠纷的需求。纠纷冲突的解决需求与司法资源的供给不足之间形成了尖锐的矛盾,而一旦社会上的矛盾冲突无法及时化解就会演变成激烈的对抗,从而影响社会的和谐与稳定。目前,诉讼、调解与仲裁构成了我国民事纠纷解决的主要方式,每一种解决方式各有千秋,如何使人民法院和民间调解机构利用有限的司法资源在构建和谐社会过程中发挥应有的作用,发挥人民法院的司法保障职能,有效地处理社会纠纷问题,成为我们必须正视并加以解决的重大问题。人民调解和诉讼都属于纠纷解决机制,其中人民调解利用其民间性、自治性的优势参与纠纷解决,而诉讼则利用其公权性和强制性发挥作用,虽然两者的矛盾处理方式不同,但在解决社会矛盾纠纷、维护社会发展秩序的稳定等方面都发挥着突出作用。实践证明,构建人民调解和诉讼相衔接的多元化纠纷解决机制,并使民间调解,法院调解,仲裁等纠纷解决方式与诉讼制度相互衔接与协调,对于我国现阶段的司法体制改革和保障全社会公平正义具有十分重要的促进作用。目前,各国普遍重视加强以人民调解为代表的替代性纠纷解决机制(Alternative Dispute Resolution,简称ADR,下同)的发展,各国法院普遍开始对诉讼程序实行司法控制,鼓励纠纷当事人以非诉讼方式来解决他们之间的纠纷,目的就是为了节省司法资源,减轻当事人的诉讼负担,推进诉讼程序的改革,提高诉讼效率,保障社会公平正义。而作为ADR的杰出代表,有着“东方经验”之称的人民调解制度也应当发挥其相关的作用。本文通过对我国的人民调解与诉讼制度衔接的实际状况加以分析并借鉴国外的研究成果,从理论和实践两方面对人民调解与诉讼制度的衔接机制进行全面、深入地研究与探讨。本文除引言和结语,共分为四个部分：第一部分是对人民调解制度的概述,作为研究人民调解和诉讼制度衔接的必要铺垫,这一部分主要介绍了人民调解制度的相关概念和历史沿革,并对其特点和工作原则加以概括,另外还总结了人民调解与诉讼制度衔接的发展历程,从调解与诉讼两方面提出了推进诉调衔接的必要性。第二部分是对国外替代性纠纷解决机制(ADR)的介绍,目前一些世界其他国家和地区的替代性纠纷解决机制与我国特有的人民调解制度有很多相似之处,即都是在第三方的主持下以非诉讼方式解决纠纷。此部分考察了欧美各国、日本以及我国台湾地区的以“调解”“调停”制度为代表的ADR的立法研究,并对其在诉讼调解衔接制度的规定加以探讨,以期对我国诉讼调解制度衔接起到借鉴作用。第三部分是以福建莆田、山东德州、四川和云南等地区为例,对我国人民调解和诉讼衔接机制的现状进行实证分析,详细阐述我国各地诉调衔接制度在纠纷解决方面的特点。第四部分是对我国人民调解和诉讼制度衔接的的完善研究。从我国的诉调衔接机制现状与不足出发,借鉴国外有益经验,对人民调解和诉讼制度的衔接机制提出可行性分析,提出通过设置诉前调解程序、完善配套保障机制等对其加以改进,构建出符合国情,适应时代的诉调衔接机制。
[Abstract]:At this stage, with the continuous development of social reform in our country, the civil contradictions and disputes in the society are constantly emerging, and the number of various new disputes and cases has been increasing geometrically, which makes the court unable to take care of the court, the number of cases and the difficulty of handling the highly specialized cases has become the urgent problem that the court needs to solve at present. Since the 90s of the century, the contradiction between the social mediation and the dispute settlement mechanism has been increasingly intensified. On the one hand, the non litigation dispute settlement mechanism, represented by the people's mediation, has gradually declined, while the litigation cases accepted by the court are increasing rapidly, and the accumulated cases are very serious; the other side, the limited judicial resources can not meet the timely solution. The demand for increasing civil disputes has formed a sharp contradiction between the demand for resolving disputes and the shortage of judicial resources, and once the conflict in society cannot be resolved in time, it will evolve into a fierce confrontation, thus affecting the harmony and stability of the society. The main ways to solve these problems are different. How to make use of the limited judicial resources to play their due role in the process of building a harmonious society, to play the judicial guarantee function of the people's court and to effectively deal with the problems of social disputes, we must face and solve the problem. Big problem.
The people's mediation and litigation belong to the dispute settlement mechanism, in which the people's mediation takes advantage of its folklore and autonomy to take part in the dispute resolution, while the litigation uses its public power and the mandatory role, although the two ways of dealing with the contradictions are different, but they are all responsible for solving the disputes of social contradictions and maintaining the stability of the social development order. In practice, it has proved that the construction of a diversified dispute settlement mechanism which is connected with the people's mediation and litigation has made the civil mediation, court mediation, arbitration and other disputes solving methods connected and coordinated with the litigation system. It has a very important promotion to the reform of the judicial system at the present stage and the protection of the fair and justice of the whole society. Use.
At present, every country attaches great importance to the development of the alternative dispute resolution mechanism (Alternative Dispute Resolution, ADR, and the following), which is represented by the people's mediation. The courts of all countries have generally begun to carry out judicial control of the proceedings and encourage the parties to settle their disputes by non litigation. The purpose is to save the company. Legal resources can reduce the litigant's burden of litigation, promote the reform of litigation procedure, improve the efficiency of the lawsuit and guarantee the social justice and justice. As an outstanding representative of ADR, the people mediation system, called "Eastern experience", should also play its related role. This article through the actual situation of the connection of the people's mediation and litigation system in our country. By analyzing and drawing on the research achievements of foreign countries, from the two aspects of theory and practice, the connection mechanism of the people's mediation and litigation system is thoroughly studied and discussed.
In addition to the introduction and conclusion, this article is divided into four parts.
The first part is the summary of the people's mediation system, as the necessary paving for the study of the connection between the people's mediation and the litigation system. This part mainly introduces the related concepts and historical evolution of the people's mediation system, summarizes its characteristics and working principles, and also summarizes the development course of the connection between the people's mediation and the litigation system. The two aspects of solution and litigation put forward the necessity of promoting the connection between litigation and mediation.
The second part is the introduction of the alternative dispute settlement mechanism (ADR) abroad. At present, the alternative dispute settlement mechanism of some other countries and regions in the world has many similarities with the unique people's mediation system in our country, that is, to resolve disputes by non litigation under the auspices of the third party. This part examines the European and American countries and Japan. The Legislative Research on ADR, represented by the "mediation" and "mediation" system in the Taiwan area of China, and discusses the provisions of the system of mediation and connection in litigation, in order to play a reference role in the connection of our country's litigation mediation system.
The third part, taking Fujian Putian, Shandong Dezhou, Sichuan and Yunnan as an example, makes an empirical analysis of the current situation of the mediation and litigation mechanism of our people's mediation and litigation, and expounds the characteristics of the dispute settlement system in all parts of our country.
The fourth part is the perfect study of the connection between the Chinese people's mediation and the litigation system. From the current situation and deficiency of our country's mediation mechanism, the feasibility analysis of the connection mechanism of the people's mediation and litigation system is put forward by using the useful experience of foreign countries for reference. In addition, we should build up a mechanism of linking up with the national conditions and adapting to the times.
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926

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