论民事诉讼和解制度的立法完善

发布时间：2018-04-22 13:10

本文选题：民事和解 + 处分权　；参考：《吉林大学》2017年硕士论文

【摘要】：民事诉讼和解制度是私人之间解决民事争议的一种制度构建,主要是在诉讼过程中通过双方当事人达成合意,形成某种文书,最终达到解决纠纷的目的。和解制度的存在一方面是对当事人权利的保障和尊重,另外一方面对于提高诉讼效率、节约司法资源是极其重要的。但是由于我国在诉讼制度上存在缺欠,导致我国的民事诉讼和解制度存在很多的不足,这使得民事诉讼和解制度很难发挥出其应有的作用。我国民事诉讼和解制度在立法中并没有得到充分的肯定和认可。而这一制度的缺欠主要体现在1、诉讼和解协议的效力不明确;2、民事诉讼和解中合意内容的合法性不明确;3、民事诉讼和解协议规范依据不明确;4、监督与补救机制缺位这四个方面。这些制度缺陷的存在一方面是制度的本身不足,另一方面也是我国的某些特殊原因照成的。究其原因大体可以归纳为1、立法背景变迁的影响;2、民事诉讼和解的错误定位;3、权力本位主义的影响;4、法院调解制度的冲击这四个原因。在分析了我国民事诉讼和解制度的缺欠及其成因后,如何完善该项制度是急需解决的一个问题,民事诉讼和解制度完善有其深厚的理论依据。首先,意思自治原则是完善该项制度的基础,作为一个理性的经济人,在综合考量各方面因素的情况下,选择诉讼和解是最优良的选择。而当事人对这一制度的选取也是其意思自治的集中体现。其次,当事人处分原则的确立为这一制度的完善提供了理论前提。这一原则也构成民事诉讼和解的理论基础,如果缺乏处分权,那么当事人之间基于自我意思表示而达成的合意就无法实现。最后,效率原则是完善这一制度的理论目标。民事诉讼和解对于降低纠纷解决的成本、提高诉讼效益具有重要的作用。完善诉讼和解制度,以当事人的合意来解决纠纷,不仅节约了司法资源,更重要的是提高了诉讼效益,实现民事诉讼的基本价值目标—公正、效率。民事诉讼和解制度的完善是有很大的理论和现实意义的,完善这一制度也有着丰富的价值目标。首先,这一制度的完善是充分尊重当事人自主决策权的体现。其次,完善这一制度可以有效的解决“执行难”的问题。再次,民事诉讼和解制度的完善有利于节约司法成本。最后,为了缓和社会矛盾同样需要对这一制度予以完善。要完善这一制度要从理论上和制度上双管齐下,在理念上,首先应当重塑诉讼和解制度的立法理念,诉讼和解契约将对实体的处分与对程序的处分完美的结合于一体,可以将诉讼和解制度从目前的困境之中解救出来。其次应当确立民事诉讼和解的自愿原则。在制度上,1、应当尊重和强化当事人的处分权,强化当事人的处分权是我国当前正在进行的民事审判方式改革的重点之一。当事人只有真正的享有处分权才能成为合意的决定因素,才能使强制或者变相的强制和解得到控制,合意解决纠纷的功能才能充分的发挥。2、要确定法官对诉讼和解的释明义务。法官的释明义务要严格的限制在当事人的和解协议内容范围内,不得超过当事人申请的范围,避免造成法官释明权的扩张对当事人达成合意的干扰和损害。3、确立法官对和解协议的审查制度。人民法院在确认和解协议效力的时候,不仅应当对和解协议的真实性进行审查,更要对和解协议的合法性进行审查。4、赋予和解协议以法律效力。由于和解协议有以上多种优势,因此应当大力鼓励和解协议的作出。在民事领域,双方之间达成的和解协议本质上带有民事合同的性质。5、确立审前程序。审前程序最重要的作用,便是可以在案件审理之前使当事人充分获取信息,整理争议焦点,清除不相关之事项,使全部的情况都明了后,促进当事人的和解,即要获取一个高效率的审判。6、加强律师的介入。律师与律师之间的协商是纠纷解决最有利的方式,而且经验丰富的律师都擅于谈判,对案件的评价也较为精准,建立完善的律师制度对于诉讼和解的作用是至关重要的。7、规定诉讼和解期间。对于民事诉讼和解的期间,应该有明确的规定,原则上只要进入诉讼系属即可和解,这样才可以充分保障当事人的选择权、处分权等权益,也是民事诉讼解决私权纠纷的实质要求。民事诉讼和解制度的特点明显,价值突出,是应当极力推行的制度,如何使其发挥应有的作用,完善民事诉讼和解制度,成为民事诉讼过程中的重要一环,是每一个法律人需要努力的方向。民事诉讼和解制度存在着很多的制度缺陷和不足,应当从理念上、原则上和具体制度上对其进行完善。
[Abstract]:The system of civil litigation reconciliation is a system for private settlement of civil disputes. It is mainly in the process of litigation to achieve the purpose of resolving disputes through mutual agreement between the parties, and finally to the purpose of resolving disputes. The existence of the system of reconciliation is the protection and respect for the rights of the parties on the one hand, and on the other hand it improves the effectiveness of the litigation. It is very important to save the judicial resources. However, owing to the lack of the litigation system in our country, there are many shortcomings in the system of civil litigation reconciliation in our country, which makes it difficult to play its due role. The civil procedure reconciliation system in China has not been fully affirmed and approved in the legislation. And the default of this system is mainly embodied in 1, the validity of the settlement agreement is not clear; 2, the legitimacy of the content in the civil procedure reconciliation is not clear; 3, the standard basis of the civil procedure settlement agreement is not clear; 4, the absence of supervision and remedial mechanism in the four aspects. The existence of these system defects is the deficiency of the system itself, the other side. There are some special reasons for our country. The reason can be summed up as 1, the influence of the legislative background change; 2, the wrong orientation of civil litigation reconciliation; 3, the influence of power departmentalism; 4, the impact of the court mediation system on the four reasons. After the analysis of the shortcomings and causes of the reconciliation system in my national proceedings and its causes, how to improve it, how to improve it The system is an urgent problem to be solved. The perfection of the system of civil litigation reconciliation has its profound theoretical basis. First, the principle of autonomy is the basis for improving the system. As a rational economic man, the choice of litigation reconciliation is the best choice under the circumstances of the comprehensive consideration of all aspects. Secondly, the establishment of the party's disposition principle provides a theoretical basis for the perfection of the system. This principle also forms the theoretical basis for the reconciliation of civil litigation. If there is a lack of the right to dispose of the parties, the agreement between the parties can not be realized on the basis of the self meaning table. Finally, the efficiency is effective. The principle is to perfect the theoretical goal of this system. Civil litigation reconciliation plays an important role in reducing the cost of the dispute settlement and improving the efficiency of the lawsuit. It is important to improve the legal efficiency and realize the basic value of the civil action by improving the litigation reconciliation system and solving the disputes with the parties' agreement. The perfection of the system of civil litigation reconciliation is of great theoretical and practical significance. The perfection of this system also has a rich value goal. First, the perfection of this system is the embodiment of full respect for the independent decision-making power of the parties. Secondly, the perfection of this system can effectively solve the problem of "difficult implementation". Again, In the end, in order to ease social contradictions, it is also necessary to improve the system. In order to improve this system, it is necessary to improve the system both in theory and system. In the first place, we should reshape the legislative idea of the litigation reconciliation system, and the litigation settlement contract will dispose of the entity. With the perfect combination of the disposition of the procedure, the lawsuit reconciliation system can be saved from the present predicament. Secondly, the voluntary principle of civil litigation reconciliation should be established. In the system, 1, we should respect and strengthen the parties' right to dispose of the parties and strengthen the parties' right of disposition to change the civil trial mode currently being carried out in our country. One of the key points of leather is that only if the parties really enjoy the right to dispose of them, can they make the compulsory or disguised compulsory conciliation be controlled. The function of the settlement of the dispute can be fully exerting.2, and the judge's interpretation obligation to the litigation is to be determined. The interpretation obligation of the law officer should be strictly limited to the parties. Within the scope of the settlement agreement, the scope of the application shall not exceed the scope of the application of the parties to avoid the interference and damage to the parties concerned by the expansion of the interpretation of the judge's right to the parties and to damage the.3, and to establish a system of review of the settlement agreement by the judge. The legality of the settlement agreement is examined by.4 and the settlement agreement is given legal effect. Since the conciliation agreement has many advantages, the settlement agreement should be strongly encouraged. In the civil field, the settlement agreement between the two parties is essentially a civil contract with the nature of.5, and the pretrial procedure is the most important role, Before the trial, it is possible to make the parties fully obtain information, organize the focus of the dispute, remove the unrelated matters, make all the cases clear, and promote the conciliation of the parties, namely, to obtain an efficient trial.6 and to strengthen the intervention of the lawyer. The rich lawyers are good at negotiating, and the evaluation of the cases is more accurate. The establishment of a perfect lawyer system for the settlement of the lawsuit is a crucial.7. The period of the settlement of the lawsuit should be specified. In principle, it can be fully guaranteed so long as the entry into the litigation department can be reconciled so that it can be fully guaranteed. The rights and interests of the disabled parties, such as the right to choose and the right to dispose, are also the essential requirements for the civil litigation to solve the disputes of private rights. The system of civil litigation is characterized by obvious characteristics and outstanding value. It is a system that should be carried out vigorously. How to make it play its due role and improve the settlement system of civil litigation has become an important part of the civil litigation process, and it is every one. The legal person needs the direction of hard work. There are many institutional defects and shortcomings in the system of civil litigation reconciliation. It should be perfected from the concept, principle and specific system.

【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

【参考文献】