对当前诉讼调解“热”的“冷”思考

发布时间：2018-08-27 12:17

【摘要】：被誉为“东方经验”的诉讼调解在我国建国之初曾经系人民司法的主要工作方式,在经历相当长一段时间的沉寂后,在本世纪初又逐步升温,近两年更是在全国掀起了调解的热潮,在举国倡导调解的思想指导下,在各级党委、政府及司法机关的强力推动下,诉讼调解的地位越来越高,诉讼调解的压力越来越大,诉讼调解的氛围越来越浓,并直接导致近年来调解结案率快速上升。上述现象的出现,主要是是因为：党委、政府建设和谐社会的要求；法院应对执行难的无奈之举；法官回避社会矛盾的痛苦选择。笔者对这种喧嚣的热潮的特点进行简要的归纳,并试图分析、寻找这种社会现象出现的深层次原因。随着诉讼调解热的不断升温,过分强调诉讼调解,虽然在短期内取得了一定的社会效果,但不可否认的是,诉讼调解毕竟存在诸多局限和不足,比如,有失调解的本质特征；有违法官的中立角色；有悖程序的正当要求；难言结果的公平公正；加剧法官的心理矛盾等。笔者在总结、阐述其存在的主要问题的同时,也对导致这些问题的各种原因进行了全方位的分析：模糊认识是制约诉讼调解健康发展的根本原因；立法滞后是制约诉讼调解健康发展的技术原因；涉诉信访是制约诉讼调解健康发展的现实原因；急功近利是制约诉讼调解健康发展的主观原因。发现问题是解决问题的基础。针对目前调解热现象存在的主要问题,在现阶段完善我国诉讼调解制度具有很强的现实意义。为了解决诉讼调解制度在地位、程序、队伍、方法等方面存在的问题,我们要强调、重视调解,但是决不能以排挤、牺牲判决为代价,甚至错误地将调解置于裁判之上。我们要处理好诉讼调解与判决的关系：坚持裁判为本,调解为辅,让调解与裁判回归其本来面目；要完善诉讼调解制度,确立当事人意思自治为主,国家干预为辅的制度,坚持调审分离和引进独立调解人制度,建立有限调解制度,积极探索建立对调解的司法审查和救济程序；要进一步拓展诉讼调解的职能,建立诉讼调解、人民调解、行政调解的“三调联动”机制；要不断提高调解队伍的素质,设立调解人制度,建立一支职业化的调解人队伍。上述对策、建议,希望能对保障诉讼调解工作的健康、可持续发展有所裨益。
[Abstract]:At the beginning of the founding of the people's Republic of China, litigation mediation, known as the "Oriental experience," was the main working method of the people's judiciary. After a long period of silence, it gradually warmed up at the beginning of this century. In the last two years, there has been an upsurge in mediation throughout the country. Under the guidance of the idea of advocating mediation throughout the country, under the strong push of party committees, governments and judicial organs at all levels, the status of litigation mediation has become increasingly high, and the pressure of litigation mediation has been increasing. The atmosphere of litigation mediation is becoming more and more intense, which directly leads to a rapid increase in the settlement rate of mediation in recent years. The above phenomena are mainly due to the requirements of the Party committee and government to build a harmonious society, the helpless action of the court to deal with the difficulties of execution, and the painful choice of judges to avoid social contradictions. The author makes a brief summary of the characteristics of this noisy upsurge, and tries to find out the deep reasons for the emergence of this kind of social phenomenon. With the increasing heat of litigation mediation, excessive emphasis on litigation mediation, although in the short term has achieved certain social results, but undeniably, litigation mediation after all, there are many limitations and deficiencies, such as, lose the essential characteristics of mediation; In violation of the neutral role of the judge; contrary to the due process requirements; fair and impartial results; aggravate the psychological contradictions of the judge. The author summarizes the main problems and analyzes the causes of these problems: fuzzy understanding is the fundamental reason that restricts the healthy development of litigation mediation; The lag of legislation is the technical reason of restricting the healthy development of litigation mediation, the practical reason of restricting the healthy development of litigation mediation is petition, and the subjective reason of restricting the healthy development of litigation mediation is to make quick and immediate profits. Finding a problem is the basis for solving a problem. In view of the main problems existing in the hot phenomenon of mediation at present, it is of great practical significance to perfect the mediation system of litigation in our country at the present stage. In order to solve the problems existing in the system of litigation mediation in the aspects of status, procedure, team and method, we should emphasize that we should attach importance to mediation, but we must not put mediation above the judgment at the expense of the judgment. We should properly handle the relationship between litigation mediation and judgment: adhere to the principle of umpire as the basis, mediation as the secondary, and let the mediation and the referee return to their true form; we should perfect the litigation mediation system, establish the system of party autonomy as the priority, and the state intervention as the supplement. It is necessary to persist in the separation and introduction of the system of independent mediators, establish a limited mediation system, and actively explore the establishment of judicial review and relief procedures for mediation; it is necessary to further expand the functions of litigation mediation, to establish litigation mediation, and to establish people's mediation, It is necessary to improve the quality of the mediation team, set up a system of mediators, and establish a professional team of mediators. The above countermeasures and suggestions are expected to be beneficial to the health and sustainable development of litigation mediation.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926

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