民事诉讼调解的理性反思与制度完善

发布时间：2018-02-21 05:22

本文关键词： 诉讼调解查明事实第三人利益调审合一调审分离　出处：《河北大学》2014年硕士论文　论文类型：学位论文

【摘要】：诉讼调解具有和谐、效率、效益等价值,具有彻底解决纠纷、节省司法成本、恢复紧张的社会关系和促进社会和谐等功能。在民事纠纷化解上,诉讼调解具有优势,但存在对案件当事人的诉讼权利造成损害、一方当事人做出让步而牺牲合法权益、法官怠于履行法律赋予的审判职权等弊端。法院在诉讼期间内过分强调调解弱化依法判决,会使法院民事审判原本的判断是非、制裁违法、形成社会规则的功能大打折扣。依法裁判应该是法院解决法律纠纷的主要方式,法院应该通过对案件的裁判来强化规则,我们应理性看待民事诉讼调解,尤其是调解优先,应合理构建调解与判决的正确关系。“查明事实、分清是非”原则存在以下缺陷:只有开庭审理才能查清事实;与调解解决纠纷的诉讼机制不相符合,作为调解的原则不恰当;不利于节约诉讼成本,降低了诉讼效率,有违调解的经济原则;无助于当事人达成调解协议;与司法公正的价值取向相违背。但并不是所有的案件只有通过法庭审理、法庭辩论才能查明事实、分清是非;坚持事实不清、是非不明再调解,可能引发新的纠纷,影响法院审理案件的质量;掌握的事实越多越有利于调解;事实不清、是非不明时达成调解法律后果严重;查明事实、分清是非与自愿原则、不违法原则一脉相承。建议以“事实清楚、是非分明”原则取代“查明事实、分清是非”原则。在适用调解方式审结案件的同时,由于各种原因,诉讼调解侵害案外第三人合法利益的案件日益增多。诉讼调解阻碍第三人参与调解程序的原因在于诉讼调解是一种以当事人处分权为主导、人民法院履行审判职责为辅的纠纷解决机制。诉讼当事人达成调解协议,法院进行司法确认制作的民事调解书生效后,第三人认为调解书侵害其合法权利时有案外第三人执行异议、案外第三人执行异议之诉、第三人申请再审、第三人撤销之诉等救济途径。应当加强对案外第三人合法权益的保护。“调审合一”模式主要有四个弊端:容易使法官形成双重身份而尴尬;会造成审判与调解价值的不和谐;容易使法律适用软化,容易形成“有法不依”;影响自愿原则的落实。主张采用“调审分离”模式。
[Abstract]:Litigation mediation has the value of harmony, efficiency and benefit. It has the functions of thoroughly resolving disputes, saving judicial costs, restoring tense social relations and promoting social harmony. However, there are some disadvantages such as harming the litigant's litigation right, one party making concessions at the expense of lawful rights and interests, the judge being lazy to perform the judicial power conferred by law, etc. During the litigation period, the court overemphasizes mediation and weakens the judgment according to law. It will make the original judgment of the civil trial of the court wrong, sanction illegal, and the function of forming social rules be greatly compromised. Adjudication in accordance with the law should be the main way for the court to resolve legal disputes. The court should strengthen the rules through the adjudication of the case. We should treat the civil litigation mediation rationally, especially the mediation priority, and construct the correct relationship between mediation and judgment reasonably. The principle of "find out the facts and distinguish the right and wrong" has the following defects: only the court hearing can find out the facts; It is not in accordance with the litigation mechanism of mediation and is not appropriate as the principle of mediation; it is not conducive to saving litigation costs, reducing the efficiency of litigation and violating the economic principle of mediation; it does not help the parties to reach a mediation agreement. Contrary to the value orientation of judicial justice. However, not all cases can only be heard by the court before the court can find out the facts and distinguish between right and wrong; if the facts are not clear, the right or wrong may be re-conciliated, which may lead to new disputes. Affecting the quality of cases before the Court; the more facts at hand, the more conducive to mediation; the more ambiguous the facts, the more serious the legal consequences of reaching conciliation when the right or wrong is unknown; and the identification of the facts and the distinction between the principle of non-legality and the principle of voluntariness, It is suggested that the principle of "ascertaining facts and distinguishing between right and wrong" be replaced by the principle of "clear facts, clear right and wrong". The reason why litigation mediation hinders the third party from participating in mediation procedure is that litigation mediation is dominated by the right of disposition of the parties. A dispute resolution mechanism in which the people's court performs its judicial duties as a supplement. After the litigant has reached an agreement on mediation, and the civil mediation statement produced by the court for judicial confirmation has come into effect, When a third party considers that a mediation statement infringes upon his lawful rights, the third person who is outside the case shall execute the objection, and the third party shall apply for retrial, It is necessary to strengthen the protection of the legal rights and interests of the third party outside the case. There are four main drawbacks in the mode of "the unity of trial and trial": it is easy for judges to form double identities and embarrassment, which will lead to the disharmony of the value of trial and mediation. It is easy to soften the application of the law and to form the principle of "not abiding by the law".
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.14

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