论民事诉讼与人民调解的衔接
发布时间：2019-01-08 11:17
【摘要】：目前我国正在从“诉讼时代”走向“后诉讼时代”,虽然诉讼更具正统性和权威性,但由于整个社会的法治理念在逐步改变,人们从原有对诉讼的盲目推崇,已经发展到现在越来越理智的选择解决纠纷的最优办法。 另外,随着社会的发展,世界范围内诉讼爆炸,各国都意识到调解的重要性,调解的独特优势也再度得以发挥。尤其是作为我国特有的东方经验——“人民调解制度”,在全世界强化调解重要性的大环境之下,在全国大力提倡人民调解复兴的大背景之下,更是弥补了诉讼繁琐、刚性及高费用等多种不足。然而现阶段的人民调解制度也存在自身效力不强等劣势。基于此,只有尝试调解与诉讼的相互融合,建立民事诉讼与人民调解的有效衔接机制,才能顺应时代的要求,更为合理有效的解决现代纷繁复杂的纠纷案件,实现诉讼与非诉解纷方式的良性发展,达到解纷方式的多元化和最优化。因此,文章就我国民事诉讼与人民调解的衔接机制展开具体论述。 文章第一章是对民事诉讼和人民调解的概述。将民事诉讼的两部分即民事审判和法院调解各自与人民调解的关系进行了分析,同时也表明了文章的观点即逐步弱化法院调解,让人民调解借鉴并代替法院调解,并直接与诉讼程序结合。第二章对民事诉讼和人民调解衔接的目的、法理基础、原因及可行性等进行了阐述。一方面,《中华人民共和国人民调解法》等相关法律法规、司法解释及相关地方性法律文件为两者衔接奠定了合法性基础,另一方面,诉讼方式本身存在的问题和人民调解的强化趋势等又进一步推动了两者的衔接进程。同时,两者的共同点决定了他们具有追求公平正义、实现和谐稳定等相同的价值目标,而两者的差异也正好能使其在衔接中互补与促进。这些都说明人民调解与民事诉讼的衔接具有相当的可行性。第三章则是以上海的“人民调解窗口”和黑龙江的“诉讼各阶段全面衔接”两地实例,叙述了民事诉讼和人民调解的衔接实践。文章不仅对其基本理论进行了简单阐述,而且在单独剖析各自实践经验优劣势的基础上,针对性的给予了一些完善建议。第四章便是对两者衔接机制的完善。作者首先站在一定高度,对完善的意义进行了抽象性的概括,随后便在法律层面和操作层面对两者的衔接提出了一定的完善措施。其中对于操作层面,作者进行了程序上和制度上的双重探析,重点构建了人民调解准前置程序,并在强调明确人民调解业务范围的同时,建立了调解员培训指导和衔接工作考核两种制度。另外,作者也指出了两者衔接时一些应该注意的问题,这对今后衔接工作的开展具有良好的指导意义。
[Abstract]:At present, our country is moving from "litigation era" to "post-litigation era". Although litigation is more orthodox and authoritative, but because of the gradual change of the concept of rule of law in the whole society, people blindly praise litigation from the original. It has developed into a more and more rational choice of the best way to resolve disputes. In addition, with the development of society and the explosion of litigation all over the world, countries are aware of the importance of mediation, and the unique advantages of mediation have been brought into play again. In particular, as our country's unique oriental experience, "people's Mediation system", under the general environment of strengthening the importance of mediation throughout the world, and against the background of vigorously advocating the revival of people's mediation throughout the country, it has made up for the cumbersome litigation. Rigidity and high costs and other shortcomings. However, the current people's mediation system also has its own weak effectiveness and other disadvantages. Based on this, only by trying to integrate the mediation and litigation, and establishing an effective link mechanism between civil litigation and people's mediation, can we meet the requirements of the times and solve the complicated and complicated disputes more reasonably and effectively. To realize the benign development of litigation and non-litigation dispute resolution, to achieve the diversification and optimization of dispute resolution. Therefore, the article discusses the connection mechanism between civil action and people's mediation. The first chapter is the summary of civil action and people's mediation. The relationship between civil trial and court mediation and people's mediation is analyzed. At the same time, the viewpoint of the article is to gradually weaken court mediation, and let people's mediation learn from and replace court mediation. And directly combined with the proceedings. The second chapter expounds the purpose, legal basis, reasons and feasibility of the connection between civil action and people's mediation. On the one hand, the people's Mediation Law of the people's Republic of China and other relevant laws and regulations, judicial interpretation and relevant local legal documents have laid the legal foundation for the link between the two. On the other hand, The problems existing in the way of litigation and the strengthening trend of people's mediation have further promoted the convergence process of the two. At the same time, their common ground determines that they have the same value goal of pursuing fairness and justice, realizing harmony and stability, and the difference between them can make them complement and promote each other in cohesion. All these show that the people's mediation and civil proceedings are quite feasible. The third chapter describes the practice of linking civil litigation and people's mediation with the examples of "people's Mediation window" in Shanghai and "all stages of Litigation" in Heilongjiang Province. This paper not only gives a brief exposition of its basic theory, but also gives some perfect suggestions on the basis of analyzing the merits and demerits of their respective practical experiences. The fourth chapter is the perfection of the connection mechanism between the two. The author firstly generalizes the meaning of perfection from a certain height, and then puts forward some measures to improve the connection between the two at the level of law and operation. At the operational level, the author makes a double analysis of the procedure and the system, focuses on the construction of the people's mediation quasi-front procedure, and emphasizes the definition of the scope of the people's mediation business at the same time, Establish two systems of mediators training guidance and link-up work evaluation. In addition, the author also points out some problems that should be paid attention to in the connection between them, which has a good guiding significance for the development of cohesion in the future.
【学位授予单位】：太原科技大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.14;D926
本文编号：2404529
[Abstract]:At present, our country is moving from "litigation era" to "post-litigation era". Although litigation is more orthodox and authoritative, but because of the gradual change of the concept of rule of law in the whole society, people blindly praise litigation from the original. It has developed into a more and more rational choice of the best way to resolve disputes. In addition, with the development of society and the explosion of litigation all over the world, countries are aware of the importance of mediation, and the unique advantages of mediation have been brought into play again. In particular, as our country's unique oriental experience, "people's Mediation system", under the general environment of strengthening the importance of mediation throughout the world, and against the background of vigorously advocating the revival of people's mediation throughout the country, it has made up for the cumbersome litigation. Rigidity and high costs and other shortcomings. However, the current people's mediation system also has its own weak effectiveness and other disadvantages. Based on this, only by trying to integrate the mediation and litigation, and establishing an effective link mechanism between civil litigation and people's mediation, can we meet the requirements of the times and solve the complicated and complicated disputes more reasonably and effectively. To realize the benign development of litigation and non-litigation dispute resolution, to achieve the diversification and optimization of dispute resolution. Therefore, the article discusses the connection mechanism between civil action and people's mediation. The first chapter is the summary of civil action and people's mediation. The relationship between civil trial and court mediation and people's mediation is analyzed. At the same time, the viewpoint of the article is to gradually weaken court mediation, and let people's mediation learn from and replace court mediation. And directly combined with the proceedings. The second chapter expounds the purpose, legal basis, reasons and feasibility of the connection between civil action and people's mediation. On the one hand, the people's Mediation Law of the people's Republic of China and other relevant laws and regulations, judicial interpretation and relevant local legal documents have laid the legal foundation for the link between the two. On the other hand, The problems existing in the way of litigation and the strengthening trend of people's mediation have further promoted the convergence process of the two. At the same time, their common ground determines that they have the same value goal of pursuing fairness and justice, realizing harmony and stability, and the difference between them can make them complement and promote each other in cohesion. All these show that the people's mediation and civil proceedings are quite feasible. The third chapter describes the practice of linking civil litigation and people's mediation with the examples of "people's Mediation window" in Shanghai and "all stages of Litigation" in Heilongjiang Province. This paper not only gives a brief exposition of its basic theory, but also gives some perfect suggestions on the basis of analyzing the merits and demerits of their respective practical experiences. The fourth chapter is the perfection of the connection mechanism between the two. The author firstly generalizes the meaning of perfection from a certain height, and then puts forward some measures to improve the connection between the two at the level of law and operation. At the operational level, the author makes a double analysis of the procedure and the system, focuses on the construction of the people's mediation quasi-front procedure, and emphasizes the definition of the scope of the people's mediation business at the same time, Establish two systems of mediators training guidance and link-up work evaluation. In addition, the author also points out some problems that should be paid attention to in the connection between them, which has a good guiding significance for the development of cohesion in the future.
【学位授予单位】：太原科技大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.14;D926
【参考文献】
相关期刊论文 前10条
1 强世功;;权力的组织网络与法律的治理化——马锡五审判方式与中国法律的新传统[J];北大法律评论;2000年02期
2 强世功;“法律不入之地”的民事调解——一起“依法收贷”案的再分析[J];比较法研究;1998年03期
3 张华;张露藜;李克;;论人民调解与诉讼之互补关系[J];北京政法职业学院学报;2008年03期
4 石先广;;人民调解、行政调解、司法调解有机衔接的对策思考——以上海市杨浦区整合调解资源的实践探索为视点[J];中国司法;2006年08期
5 吴玲;;人民调解立法及其研究[J];中国司法;2009年05期
6 张卫平;我国替代性纠纷解决机制的重构[J];法律适用;2005年02期
7 黄斌;刘正;;论多元化纠纷解决机制的现状、困境与出路 立足于我国法院的思考[J];法律适用;2007年11期
8 闫庆霞;;人民调解前置制度之反思——以民事程序选择权为讨论的出发点[J];法学家;2007年03期
9 严如春;;“背对背”调解的弊端及其矫正浅议[J];南京航空航天大学学报(社会科学版);2008年03期
10 敖妙;;我国与美国司法ADR的比较研究——兼论对构建我国多元化纠纷解决机制的启示[J];沈阳工程学院学报(社会科学版);2009年03期
相关硕士学位论文 前2条
1 吴琼;论人民调解与诉讼程序相衔接的理论与实践[D];对外经济贸易大学;2006年
2 崔永振;诉讼与调解相衔接的制度化研究[D];山东大学;2009年
，本文编号：2404529
本文链接：https://www.wllwen.com/falvlunwen/gongjianfalunwen/2404529.html
