论我国民事诉讼中的先行调解制度
发布时间：2018-07-23 11:04
【摘要】：在我国,诉讼爆炸和司法资源紧张这一矛盾成为近年来理论和实务界广泛关注的问题,法院所面临的诉讼压力与日俱增,各地法院都不断探索尝试非诉纠纷解决的机制。在此基础上,调解以其独特优势和重要价值发挥出越来越重要的作用。特别是2012年新民诉法在122条新增了有关先行调解的规定,进一步丰富和完善了我国的法院调解制度。 毋庸置疑,先行调解制度的规定是符合我国国情和时代发展趋势的,它的产生是有历史和现实根源的。虽然先行调解首次以立法予以明确,但很多地区法院的诉前调解工作的实践,已经为先行调解制度的设置奠定了基础。先行调解制度的设立,有利于缓解法院的诉讼压力,提高诉讼效率,减轻当事人的诉累,还可以在一定程度上缓和我国法院调审合一的矛盾,有利于促进社会和谐。但是,仍处于探索阶段的先行调解制度,在司法实践中,也不可避免的暴露出了一些弊端,亟需予以完善。 本文在对先行调解制度产生的历史背景、设置的积极意义和适用先行调解应遵循的原则简要介绍的基础上,分析了先行调解制度的弊端,并进一步提出完善建议,以期能够更好地发挥先行调解的设置本意,更好地服务于司法实践。对于先行调解制度的弊端,首要的问题是必须界定清楚先行调解的性质。对此立法并没有明确的规定,学界的观点也并不统一。笔者认为,先行调解应该定性为立案前的自愿调解。此外,立法上对先行调解制度的规定并无完整的制度体系和程序设计,在司法实践中存在损害当事人诉权行使、调解成功率不高导致诉讼成本增加、先行调解被恶意适用和调解机构不独立、调解力量不足等诸多问题。针对这些问题,笔者从以下方面提出了观点和建议。首先应该在立法上明确先行调解的适用范围和法律后果,对经调解达成的调解协议,应该在当事人申请的前提下通过制作调解书赋予强制力。在司法方面,应该完善先行调解与诉讼程序的衔接,建议启用“预立案”程序实现调解和诉讼的无缝对接。同时,要进一步整合司法资源,不断优化先行调解工作的机构配置,设置独立的先行调解办公室,并在人、财、物上给与适当的倾斜,充分发挥先行调解快速、有效解决纠纷的优势。 总之,先行调解制度作为一种新型的调解制度,是顺应时代需求的产物,虽然目前还存在很多不尽如意的地方,但随着法治的不断发展,相信国家会出台相应的立法和司法解释予以完善。
[Abstract]:In our country, the contradiction between the explosion of litigation and the shortage of judicial resources has become a widespread concern in the theoretical and practical circles in recent years. The court is facing increasing pressure of litigation, and the courts all over the world are constantly exploring the mechanism of non-litigation dispute resolution. On this basis, mediation plays a more and more important role with its unique advantages and important value. In particular, the new civil action law in 2012 added the provisions on mediation in advance in 122 articles, which further enriched and improved the court mediation system in our country. There is no doubt that the provisions of the first mediation system are in line with our national conditions and the trend of development of the times, and its emergence has historical and realistic roots. Although the first mediation is made clear by legislation for the first time, the practice of pre-litigation mediation in many district courts has laid the foundation for the establishment of the system. The establishment of the mediation system in advance is conducive to relieving the pressure of the court, improving the efficiency of litigation, alleviating the litigants' tiredness, and to a certain extent easing the contradiction of the unity of court investigation and trial in our country, which is conducive to promoting social harmony. However, the system of mediation in advance is still in the exploratory stage. In judicial practice, it inevitably exposes some disadvantages and needs to be perfected. On the basis of a brief introduction of the historical background, the positive significance of the establishment and the principles to be followed in the application of the antecedent mediation system, this paper analyzes the drawbacks of the antecedent mediation system, and puts forward further suggestions for its perfection. In order to better play the original intention of mediation, better serve the judicial practice. The most important problem is to define the nature of antecedent mediation. There is no clear stipulation about this legislation, and the views of academic circles are not uniform. The author believes that the first mediation should be defined as voluntary mediation before filing. In addition, there is no complete system and procedure design for the regulation of the first mediation system in the legislation. In the judicial practice, it damages the exercise of the litigant's right of action, and the low success rate of mediation leads to the increase of the litigation cost. Mediation in advance is maliciously applicable and mediation institutions are not independent, mediation power is insufficient and many other problems. In view of these problems, the author puts forward the views and suggestions from the following aspects. First of all, the scope of application and legal consequences of mediation should be clarified in legislation, and the mediation agreement reached through mediation should be enforced by making a mediation statement under the premise of the application of the parties. In the judicial aspect, we should perfect the connection between the first mediation and the litigation procedure, and suggest that the "pre-filing" procedure be used to realize the seamless docking between mediation and litigation. At the same time, it is necessary to further integrate judicial resources, constantly optimize the organization configuration of the advance mediation work, set up an independent mediation office in advance, and give proper preference to people, money, and materials, so as to give full play to the speed of leading mediation. The advantage of resolving disputes effectively. In short, as a new type of mediation system, the advance mediation system is the product of meeting the needs of the times. Although there are still many unsatisfactory places at present, but with the continuous development of the rule of law, I believe the state will introduce the corresponding legislative and judicial interpretation to improve.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.14
本文编号：2139196
[Abstract]:In our country, the contradiction between the explosion of litigation and the shortage of judicial resources has become a widespread concern in the theoretical and practical circles in recent years. The court is facing increasing pressure of litigation, and the courts all over the world are constantly exploring the mechanism of non-litigation dispute resolution. On this basis, mediation plays a more and more important role with its unique advantages and important value. In particular, the new civil action law in 2012 added the provisions on mediation in advance in 122 articles, which further enriched and improved the court mediation system in our country. There is no doubt that the provisions of the first mediation system are in line with our national conditions and the trend of development of the times, and its emergence has historical and realistic roots. Although the first mediation is made clear by legislation for the first time, the practice of pre-litigation mediation in many district courts has laid the foundation for the establishment of the system. The establishment of the mediation system in advance is conducive to relieving the pressure of the court, improving the efficiency of litigation, alleviating the litigants' tiredness, and to a certain extent easing the contradiction of the unity of court investigation and trial in our country, which is conducive to promoting social harmony. However, the system of mediation in advance is still in the exploratory stage. In judicial practice, it inevitably exposes some disadvantages and needs to be perfected. On the basis of a brief introduction of the historical background, the positive significance of the establishment and the principles to be followed in the application of the antecedent mediation system, this paper analyzes the drawbacks of the antecedent mediation system, and puts forward further suggestions for its perfection. In order to better play the original intention of mediation, better serve the judicial practice. The most important problem is to define the nature of antecedent mediation. There is no clear stipulation about this legislation, and the views of academic circles are not uniform. The author believes that the first mediation should be defined as voluntary mediation before filing. In addition, there is no complete system and procedure design for the regulation of the first mediation system in the legislation. In the judicial practice, it damages the exercise of the litigant's right of action, and the low success rate of mediation leads to the increase of the litigation cost. Mediation in advance is maliciously applicable and mediation institutions are not independent, mediation power is insufficient and many other problems. In view of these problems, the author puts forward the views and suggestions from the following aspects. First of all, the scope of application and legal consequences of mediation should be clarified in legislation, and the mediation agreement reached through mediation should be enforced by making a mediation statement under the premise of the application of the parties. In the judicial aspect, we should perfect the connection between the first mediation and the litigation procedure, and suggest that the "pre-filing" procedure be used to realize the seamless docking between mediation and litigation. At the same time, it is necessary to further integrate judicial resources, constantly optimize the organization configuration of the advance mediation work, set up an independent mediation office in advance, and give proper preference to people, money, and materials, so as to give full play to the speed of leading mediation. The advantage of resolving disputes effectively. In short, as a new type of mediation system, the advance mediation system is the product of meeting the needs of the times. Although there are still many unsatisfactory places at present, but with the continuous development of the rule of law, I believe the state will introduce the corresponding legislative and judicial interpretation to improve.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.14
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