论民事诉讼和解制度的重构

发布时间：2019-01-22 14:29

【摘要】：将民事争议交由社会自身调节,尊重当事人的自由意志,削减职权对权益关系的干预,是现代社会对争议处理的新方向。法治社会的形成,应当与社会自我意识的觉醒保持相应的步调。但是,当前我国民事争议的处理模式,诉讼上的审判、和解,调解职权主义色彩过于明显,诉讼外的和解与调解又面临着当事人的信任危机。诉讼争议的类型化和专业化的演变,让现有的审判、和解与调解机制三者地位严重失衡,且各个制度都对现代争议类型透露着明显的滞后和不适应。因此,重构与审判、调解相适应,与现代争议发展相匹配的和解制度,显得尤为关键。本文即通过研究民事诉讼和解基本概念,借鉴域外的规定和实务经验,对比与法院调解之间的区别,从理论和实践角度出发,为我国重构民事诉讼和解制度,提出了有针对性的建议。具体来说,全文总共包括三大部分:第一部分,是民事诉讼和解制度的基本概述。对民事诉讼和解制念的分析,为整体研究确立了前提条件。对民事诉讼和解性质的探讨,为后文重构和解制度作出学理支持。对和解与法院关系的辨析,为进一步厘清和解制度打下基础;第二部分,是民事诉讼和解制度的现状和缺陷。这部分概括了我国民事诉讼和解制度在我国现在的适用情况,以及在适用中所暴露出相关的问题。这部分的问题不仅仅是制度本身存在的漏洞,还含有和解制度在适用过程中与法院调解、审判、执行程序的衔接中出现的困境。第三部分,是我国民事诉讼和解制度的重构。这部分首先从司法体制改革以及立法理念的角度分析了和解制度修改的必要性,其次提出了对民事诉讼和解制度在我国现行的诉讼体系中重构的可行性研究,再次针对制度本身和适用缺陷,提出了对民事诉讼和解制度的重构建议。其中又包括诉讼和解制度与法院关系;民事诉讼和解制度与一审判决的关系;民事诉讼和解要件、效力、程序的重构。
[Abstract]:It is a new direction in modern society to transfer civil disputes to society's own adjustment, to respect the free will of the parties, and to reduce the interference of power and authority in the relationship of rights and interests. The formation of a society ruled by law should keep a corresponding pace with the awakening of social self-consciousness. However, at present, the mode of handling civil disputes in our country, the trial, conciliation and mediation authority in litigation are too obvious, and the reconciliation and mediation outside litigation are facing the crisis of trust of the parties. The evolution of the types and specialization of litigation disputes makes the status of the existing trial, conciliation and mediation mechanism seriously out of balance, and each system reveals obvious lag and inadaptability to the types of modern disputes. Therefore, it is very important to reconstruct the reconciliation system, which adapts to the trial and mediation, and matches the development of modern disputes. This paper studies the basic concept of civil litigation reconciliation, draws lessons from overseas regulations and practical experience, compares the differences between civil litigation reconciliation and court mediation, and reconstructs the system of civil litigation reconciliation for our country from the angle of theory and practice. Some suggestions are put forward. Specifically, the paper consists of three parts: the first part is the basic overview of the settlement system of civil litigation. The analysis of the system of settlement of civil action establishes the precondition for the whole research. The discussion on the nature of the settlement of civil litigation provides theoretical support for the later reconstruction of the settlement system. The analysis of the relationship between the settlement and the court lays a foundation for further clarifying the settlement system. The second part is the present situation and defects of the settlement system in civil litigation. This part summarizes the current application of the civil litigation reconciliation system in our country, as well as the related problems exposed in the application. This part of the problem is not only the loopholes in the system itself, but also contains the reconciliation system in the process of mediation with the court, trial, execution procedures in the convergence of difficulties. The third part is the reconstruction of China's civil litigation reconciliation system. This part first analyzes the necessity of the revision of the conciliation system from the angle of the reform of the judicial system and the legislative concept, and then puts forward the feasibility study on the reconstruction of the settlement system of civil action in the current litigation system of our country. In view of the system itself and the applicable defects, this paper puts forward some suggestions for the reconstruction of the settlement system of civil action. It also includes the relationship between the system of litigation settlement and the court; the relationship between the system of settlement of civil action and the judgment of first instance; the elements of conciliation of civil action, the effect and the reconstruction of procedure.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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