我国人民调解制度变迁研究：1978-2015
发布时间：2018-08-31 15:56
【摘要】：人民调解是一项极具中国特色又蕴涵深厚中华民族传统文化的民间性纠纷解决机制,长期以来在预防和化解纠纷方面发挥着重要的作用,被誉为维护社会稳定的“第一道防线”。然而,在我国从传统向现代演进的历史洪流中,根植于传统却又作为共产党人一项新创造的人民调解制度沿着历史的轨迹发生了怎样的改变,我们如何理解它的这些改变,又如何解释它变迁背后隐藏的逻辑等问题,在当前的多元纠纷解决体系中它又将何去何从?正带着这样的问题意识,本文截取了1978-2015期间的人民调解制度,以其历史演变的历程作为考察对象,试图从法律与经济学结合的视角来阐释和理解其在从传统向现代转变的历史进程中发生的种种改变,既力图提升调解变迁的理论,深刻地解释其制度变迁背后的逻辑,又力图回应现实,为调解制度的改进和完善提供一种不同于传统法学研究意义上的应对思路。本文共分六章。第一章作为引子,对研究背景、意义、对象、方法和理论框架进行交代,并对既有文献和理论进行梳理。二到四章是对1978-2015年人民调解制度的变迁轨迹根据特定的拐点分为复苏、低迷、复兴三个发展阶段,以道格拉斯.诺斯制度变迁理论的三大基石解读人民调解制度变迁的背景,通过设定特定的变量对不同阶段人民调解制度的变迁现状与运行效果进行实证分析,具体而言:第二章侧重分析复苏的人民调解制度(1978-1992)。在农村土地承包以及城市国有企业产权改革背景分析的基础上,分析了人民调解制度得以复苏的轨迹以及制度运行的实效,得出在此阶段人民调解制度的解纷功能出现弱化倾向的结论,从制度供给与需求的角度解释人民调解制度解纷功能出现弱化倾向的原因。阐明了政府对人民调解制度进行设计安排的因素考量,并补充以人民调解的微观场景,通过典型案例说明的人民调解制度的纠纷当事人选择调解模式解决纠纷的互动博弈过程,在此基础上论证本阶段人民调解制度变迁成本。第三章主要解读低迷时期(1993-2002年)的人民调解制度。随着市场经济的不断发展与产权改革进程的逐步推进,中国社会矛盾纠纷的主体与类型呈现新的变化与趋势,国家大力推进司法体制改革,法院调解逐渐被边缘化,人民调解也陷入低谷之中。本章首先对此时期人民调解制度变迁的背景和特点进行深入分析,归纳总结此一阶段人民调解制度的运行效果,进而对其陷入低迷期的制度原因进行多维度的解读与阐释,主要包括制度变迁的新解读、“强诉讼、弱调解”纠纷解决体系的形成、人民调解制度的“锁定”效应、加以制度现状的成本测量等。第四章重点分析(2003-2015年)期间复兴的人民调解制度。这一时期,重构、复兴法院调解的热潮为实务界所首先推动。受其影响,人民调解制度在政府与社会组织的双重助力下,迎来了全面发展的又一个春天。本部分内容首先梳理了新世纪以来人民调解制度的发展现状与运行效果,然后重点阐释了人民调解与大调解、三调联动机制,人民调解之于诉讼、非诉讼纠纷解决机制,人民调解与多元纠纷解决机制之间的关系;最后对人民调解制度的均衡及演化进行了经济学分析,重点探讨了人民调解制度变迁过程中各种利益集团间的博弈问题。第五章是对上文的总结、拓展和深化,力图从整体上把握人民调解制度变迁的特点、逻辑以及未来的发展趋势。总体而言,法律制度是理性构建的产物,是利益的妥协与平衡。我国人民调解制度变迁经历了从“均衡”到“非均衡”再到“均衡”的过程,是一个动态发展、循环反复、否定之否定的过程,其具体特点表现为从“单一供给”到“多元供给”的转变、由“群众工作”与“说服教育工作”向职业化转变、是一个不断的规范化和制度化的过程。第六章首先从制度供求层面、成本收益角度、路径依赖、相关群体间的利益冲突、意识形态等方面分析人民调解制度的变迁阻力;然后在此基础上探讨人民调解的制度重构问题,本文认为短期应当要从制度供给、需求等方面走出目前的制度困境,长期应当让人民调解制度回归自治性群众性的本质。值得一提的是,本文的一大特色在于运用法律与经济学相结合的分析方法,尤其是“制度变迁”理论来阐释1978-2015年间人民调解制度演进过程,并借助制度成本和收益、制度需求和供给、制度均衡等相关概念和理论对变迁逻辑进行解释和说明。此外,本文还试图从制度供给、制度成本、路径依赖、利益冲突、意识形态等切入点进行思考,以期提供一种有针对性、具体可行的人民调解机制完善方案。
[Abstract]:People's mediation is a non-governmental dispute settlement mechanism with Chinese characteristics and profound Chinese traditional culture. It has played an important role in preventing and resolving disputes for a long time and has been praised as the "first line of defense" to maintain social stability. However, in the historical torrent of China's evolution from tradition to modern times, it is rooted in transmission. What changes have taken place in the people's mediation system created by the Communist Party as a new one along the historical track, how do we understand these changes, how do we explain the logic behind the changes, and what will it do in the current multi-dispute resolution system? Taking the people's mediation system from 1978 to 2015 as an example, this paper tries to explain and understand its changes in the historical process of transition from tradition to modernity from the perspective of the combination of law and economics, aiming at promoting the theory of mediation change and profoundly explaining the background of its institutional change. The first chapter, as an introduction, explains the research background, significance, objects, methods and theoretical framework, and combs the existing literature and theories. The second to fourth chapters are 1978-2015. According to the specific inflection point, the change track of the people's mediation system was divided into three stages: recovery, depression and revival. The background of the change of the people's mediation system was interpreted from the three cornerstones of Douglas North's theory of institutional change, and the current situation and operation effect of the change of the people's mediation system in different stages were empirically studied by setting specific variables. In particular, the second chapter focuses on the analysis of the revival of the people's mediation system (1978-1992). On the basis of the analysis of the rural land contract and the property rights reform background of urban state-owned enterprises, this paper analyzes the track of the revival of the people's mediation system and the actual effect of the system operation, and draws the conclusion that the function of the people's mediation system is weak at this stage. The conclusion of the tendency is to explain the reasons for the weakening of the function of the people's mediation system from the perspective of the supply and demand of the system.The paper expounds the factors that the government considers in designing and arranging the people's mediation system,and supplements the micro-scene of the people's mediation system,and illustrates the parties to the dispute of the people's mediation system choose mediation through typical cases. The third chapter mainly interprets the people's mediation system in the downturn period (1993-2002). With the continuous development of the market economy and the gradual advancement of the property rights reform process, the main body and types of social contradictions and disputes in China present a new era. With the change and trend, the state vigorously promotes the reform of judicial system, court mediation is gradually marginalized, and people's mediation is also in a low ebb. Firstly, this chapter analyzes the background and characteristics of the change of people's mediation system in this period, summarizes the operation effect of the people's mediation system at this stage, and then puts it into a downturn. The reasons are interpreted and explained in many dimensions, including the new interpretation of the institutional changes, the formation of the dispute resolution system of "strong litigation, weak mediation", the "lock-in" effect of the people's mediation system, and the cost measurement of the current institutional situation. Under the influence of the upsurge of court mediation, the people's mediation system has ushered in another spring of all-round development with the dual help of the government and social organizations. Finally, the paper makes an economic analysis of the balance and evolution of the people's mediation system, focusing on the game between various interest groups in the process of the change of the people's mediation system. In general, the legal system is the product of rational construction and the compromise and balance of interests. The process is a process of dynamic development, repetition and negation. Its specific characteristics are as follows: from "single supply" to "multiple supply", from "mass work" and "persuasion education" to professionalization. It is a process of constant standardization and institutionalization. From the perspective of cost-benefit, path dependence, conflict of interest among related groups, ideology and other aspects, this paper analyzes the resistance to the change of the people's mediation system, and then discusses the reconstruction of the people's mediation system on this basis. This paper argues that in the short run, we should get out of the current system dilemma from the aspects of system supply and demand, and let the people mediate in the long run. It is worth mentioning that one of the characteristics of this paper is to explain the evolution of the people's mediation system from 1978 to 2015 by using the method of combining law with economics, especially the theory of "institutional change", and to make use of the cost and benefit of the system, the demand and supply of the system, and the balance of the system. In addition, this paper also attempts to consider the system supply, system cost, path dependence, conflict of interest, ideology and other entry points, in order to provide a targeted, concrete and feasible people's mediation mechanism to improve the program.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D925.14
，
本文编号：2215467
[Abstract]:People's mediation is a non-governmental dispute settlement mechanism with Chinese characteristics and profound Chinese traditional culture. It has played an important role in preventing and resolving disputes for a long time and has been praised as the "first line of defense" to maintain social stability. However, in the historical torrent of China's evolution from tradition to modern times, it is rooted in transmission. What changes have taken place in the people's mediation system created by the Communist Party as a new one along the historical track, how do we understand these changes, how do we explain the logic behind the changes, and what will it do in the current multi-dispute resolution system? Taking the people's mediation system from 1978 to 2015 as an example, this paper tries to explain and understand its changes in the historical process of transition from tradition to modernity from the perspective of the combination of law and economics, aiming at promoting the theory of mediation change and profoundly explaining the background of its institutional change. The first chapter, as an introduction, explains the research background, significance, objects, methods and theoretical framework, and combs the existing literature and theories. The second to fourth chapters are 1978-2015. According to the specific inflection point, the change track of the people's mediation system was divided into three stages: recovery, depression and revival. The background of the change of the people's mediation system was interpreted from the three cornerstones of Douglas North's theory of institutional change, and the current situation and operation effect of the change of the people's mediation system in different stages were empirically studied by setting specific variables. In particular, the second chapter focuses on the analysis of the revival of the people's mediation system (1978-1992). On the basis of the analysis of the rural land contract and the property rights reform background of urban state-owned enterprises, this paper analyzes the track of the revival of the people's mediation system and the actual effect of the system operation, and draws the conclusion that the function of the people's mediation system is weak at this stage. The conclusion of the tendency is to explain the reasons for the weakening of the function of the people's mediation system from the perspective of the supply and demand of the system.The paper expounds the factors that the government considers in designing and arranging the people's mediation system,and supplements the micro-scene of the people's mediation system,and illustrates the parties to the dispute of the people's mediation system choose mediation through typical cases. The third chapter mainly interprets the people's mediation system in the downturn period (1993-2002). With the continuous development of the market economy and the gradual advancement of the property rights reform process, the main body and types of social contradictions and disputes in China present a new era. With the change and trend, the state vigorously promotes the reform of judicial system, court mediation is gradually marginalized, and people's mediation is also in a low ebb. Firstly, this chapter analyzes the background and characteristics of the change of people's mediation system in this period, summarizes the operation effect of the people's mediation system at this stage, and then puts it into a downturn. The reasons are interpreted and explained in many dimensions, including the new interpretation of the institutional changes, the formation of the dispute resolution system of "strong litigation, weak mediation", the "lock-in" effect of the people's mediation system, and the cost measurement of the current institutional situation. Under the influence of the upsurge of court mediation, the people's mediation system has ushered in another spring of all-round development with the dual help of the government and social organizations. Finally, the paper makes an economic analysis of the balance and evolution of the people's mediation system, focusing on the game between various interest groups in the process of the change of the people's mediation system. In general, the legal system is the product of rational construction and the compromise and balance of interests. The process is a process of dynamic development, repetition and negation. Its specific characteristics are as follows: from "single supply" to "multiple supply", from "mass work" and "persuasion education" to professionalization. It is a process of constant standardization and institutionalization. From the perspective of cost-benefit, path dependence, conflict of interest among related groups, ideology and other aspects, this paper analyzes the resistance to the change of the people's mediation system, and then discusses the reconstruction of the people's mediation system on this basis. This paper argues that in the short run, we should get out of the current system dilemma from the aspects of system supply and demand, and let the people mediate in the long run. It is worth mentioning that one of the characteristics of this paper is to explain the evolution of the people's mediation system from 1978 to 2015 by using the method of combining law with economics, especially the theory of "institutional change", and to make use of the cost and benefit of the system, the demand and supply of the system, and the balance of the system. In addition, this paper also attempts to consider the system supply, system cost, path dependence, conflict of interest, ideology and other entry points, in order to provide a targeted, concrete and feasible people's mediation mechanism to improve the program.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D925.14
，
本文编号：2215467
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