国际商事调解保障机制研究

发布时间：2019-01-23 16:54

【摘要】：随着国际商事交流的不断发展,其争议的产生也随之增多,依靠传统的诉讼与仲裁解决争议,面临着繁琐的程序规定和不确定的执行力。同时,商事争议需要在一个迅速的、保密的环境下解决,调解制度由其简化程序、保密性、自主性的特征,恰恰迎合了商事争议解决的需要,迅速的成为ADR中最具代表和应用最广的争端解决机制。然而,作为一项年轻的制度,和解协议的执行一直受到挑战。本文试图通过对和解协议的保障机制研究,具体分析了当前存在的调解员、调解程序、调仲结合制度以及司法确认制度,提出一些可以改进的地方,以资参考。关于国际商事调解的文章很多,尤其是针对和解协议效力的探讨,很多学者提出了具有建设性的意见。然而,论述的文章大多在和解协议的性质、仲裁调解和诉调衔接上,希望通过加强和解协议的效力,甚至是赋予强制执行力来提高执行力。本文试图突破传统的思维局限,不只在强制执行上做文章,同时也关注和解协议的达成。如果总是在执行上出现问题,那么该协议至少是被当事人所排斥的。被当事人排斥的协议很难说基于当事人自愿达成。所以应当将协议的达成过程与协议的执行力并重,才能充分发挥调解制度的作用。随着国际商事调解在解决国际民商事争议中的地位不断提升,本文通过简要介绍国际商事调解的兴起以及发展,对商事调解在解决民商事争议当中的地位做出判断。商事调解作为一个年轻的制度,虽然散发出蓬勃的朝气,但是也要防止因程序严格化和效力强制化造成的衰落。同时,本文对国际商事调解保障机制做了简要介绍。商事调解保障机制既包含了协议达成保障也包含了和解协议执行保障。本文认为,和解协议的达成与执行同等重要,维护制度的稳定和合理创新同样重要。目前存在的制度基本上能够满足对商事调解的保障。但是,商事调解在程序立法和司法确认上仍有需要完善的地方。国际商事调解保障机制的运行作为保障机制的核心部分,本文着重分析了商事调解中的调解员制度、调解程序、效力确认、调仲结合、诉调对接制度的运行情况,得出目前商事调解的运行对商事调解的保障作用,并对制度运行过程中产生的问题提供一些可以解决的措施。调解制度在我国有着悠久的历史,然而商事调解在我国确实一个年轻的制度。特别是针对调解程序的立法,还显得尤为不足。本文详细探讨了当前我国有关国际商事调解的实践,并对立法模式和具体立法问题上提出了一些建议和意见,以资我国在进行国际商事调解相关立法时予以参考。
[Abstract]:With the continuous development of international commercial exchanges, the emergence of disputes also increased, relying on traditional litigation and arbitration to resolve disputes, faced with cumbersome procedural provisions and uncertain executive power. At the same time, commercial disputes need to be resolved in a rapid and confidential environment. The mediation system is characterized by its simplified procedures, confidentiality and autonomy, which meets the needs of commercial dispute resolution. It has rapidly become the most representative and widely used dispute settlement mechanism in ADR. However, as a young system, the implementation of the settlement agreement has been challenged. This paper attempts to analyze the existing mediators, mediation procedures, mediation system and judicial confirmation system through the research of the safeguard mechanism of the settlement agreement, and puts forward some improvements for reference. There are many articles about international commercial mediation, especially for the discussion of the validity of settlement agreement, many scholars have put forward constructive suggestions. However, most of the articles discussed in the nature of the settlement agreement, arbitration mediation and litigation link, hoping to strengthen the effectiveness of the settlement agreement, or even to give enforcement to improve the execution. This paper attempts to break through the traditional thinking limitations, not only on enforcement, but also on the settlement agreement. If there is always a problem with enforcement, the agreement is at least rejected by the parties. It is hard to say that an agreement that is excluded by the parties is based on the voluntary agreement of the parties. Therefore, we should pay equal attention to the process of reaching the agreement and the execution of the agreement, in order to give full play to the role of mediation system. With the increasing status of international commercial mediation in the settlement of international civil and commercial disputes, this paper briefly introduces the rise and development of international commercial mediation, and makes a judgment on the position of commercial mediation in the settlement of civil and commercial disputes. Commercial mediation as a young system, although exuberant vitality, but also to prevent due to procedural strictness and force of decline. At the same time, this article makes a brief introduction to the safeguard mechanism of international commercial mediation. The guarantee mechanism of commercial mediation includes not only the agreement to reach the guarantee but also the settlement agreement to ensure the implementation of the agreement. This paper holds that the settlement agreement is as important as the implementation, and the stability and reasonable innovation of the system are equally important. The existing system can basically satisfy the protection of commercial mediation. However, commercial mediation still needs to be perfected in procedural legislation and judicial confirmation. The operation of the safeguard mechanism of international commercial mediation is the core part of the safeguard mechanism. This paper focuses on the analysis of the operation of the system of mediators, mediation procedures, validity confirmation, combination of mediation, litigation and docking in commercial mediation. The author draws a conclusion that the operation of commercial mediation has a protective effect on the commercial mediation and provides some measures to solve the problems arising in the course of the operation of the system. The mediation system has a long history in China, but commercial mediation is indeed a young system in our country. Especially for the mediation procedure legislation, but also appears to be particularly inadequate. This paper discusses in detail the practice of international commercial mediation in China at present, and puts forward some suggestions and opinions on the legislative model and specific legislative issues in order to make reference to the relevant legislation of international commercial mediation in our country.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D997.4

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