民事调解撤诉研究

发布时间：2018-05-25 03:11

本文选题：调解撤诉 + 当事人处分权　；参考：《扬州大学》2012年硕士论文

【摘要】：法院调解是指在人民法院审判人员的主持下,双方当事人通过自愿协商,达成协议,解决民事争议的活动和结案方式。而民事诉讼中的撤诉,又称诉之撤回,是指根据当事人的申请或根据法律的规定,对人民法院已经受理的诉讼予以撤销,从而终结已开始的诉讼程序的诉讼行为。调解作为法院工作的一项重要方式,长期以来在融合情感、稳定秩序和及时化解社会矛盾方面都发挥了积极的作用,近些年来,对当事人在诉讼中自行解决自身的问题这一理念更加重视,调解的意义得到了进一步的强调,其程序的构成也出现了新的发展趋势；而撤诉这个在民事诉讼法中不起眼的制度,它在尊重当事人处分权的基础上不仅仅可以及时结束那些没有继续审理下去意义的纠纷极大地节约司法资源；而且可以使得双方当事人之间的矛盾在撤诉的同时得到一定程度上的化解。因此,实践中一些案件开始出现了调解撤诉这一新的案件解决形式。但从总体上来看,我国的《民事诉讼法》和相关的司法解释,对于经过调解的当事人撤诉的问题缺乏相应的规定规定,一些规定无论在形式上还是在内容上都过于笼统,可操作性不强。在思考我国民事诉讼的相关问题时,必须充分考虑我国的传统文化背景,脱离现实照抄照搬的做法是不可取的。制度和法都是历史的产物,历史传承的影响、农业社会的熏染、儒家思想的继承、司法政策的影响、转型社会的需求构成了调解撤诉存在的历史和社会原因。当事人处分权原则奠定了民事调解撤诉的法理基础。但是调解撤诉制度也存在着程序设置上的缺陷、争议解决与权利保护的矛盾、纠纷解决的不彻底等问题,有待于通过司法实践进一步完善。同时,对调解撤诉后的再起诉问题也有必要进行分析,明确操作中的问题。
[Abstract]:Court mediation refers to the settlement of civil disputes through voluntary negotiation and agreement between the two parties under the auspices of the people's court judges. The withdrawal of action in civil action, also called withdrawal of action, refers to the action that has been accepted by the people's court according to the application of the parties or according to the provisions of the law, thus terminating the proceedings that have already begun. Mediation, as an important way of court work, has long played an active role in integrating emotions, stabilizing order and resolving social contradictions in a timely manner. In recent years, More attention has been paid to the idea of the parties solving their own problems on their own in the proceedings, the significance of mediation has been further emphasized, and the composition of its procedures has also shown a new development trend; and the withdrawal of proceedings is an insignificant system in the civil procedure law. On the basis of respecting the parties' right of disposition, it can not only end those disputes which have not continued to be tried in time, but also save judicial resources greatly. And can make the contradiction between the two parties in the withdrawal of the lawsuit at the same time can be resolved to a certain extent. Therefore, in practice, some cases began to appear mediation withdrawal, a new form of case resolution. But on the whole, the Civil procedure Law of our country and the related judicial interpretations lack the corresponding provisions on the issue of withdrawing the lawsuit by the parties involved in mediation. Some of the provisions are too general in both form and content. The maneuverability is not strong. When thinking about the related problems of civil litigation in our country, we must fully consider the traditional cultural background of our country, and it is not advisable to copy and copy from reality. System and law are both the product of history, the influence of historical inheritance, the influence of agricultural society, the inheritance of Confucianism, the influence of judicial policy and the demand of transitional society. The principle of the right to dispose of the parties laid the legal basis for the withdrawal of civil mediation. However, there are some defects in the system of mediation withdrawal, such as the contradiction between dispute settlement and right protection, and the incomplete settlement of disputes, which need to be further improved through judicial practice. At the same time, it is necessary to analyze the problem of reprosecution after mediation withdrawal.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.1;D926

【参考文献】