人民调解的监管机制研究

发布时间：2018-07-28 14:30

【摘要】：人民调解是一项具有中国特色和深厚中华民族传统文化内涵的法律制度。它在我国的多元化纠纷解决机制中占有十分重要的地位。人民调解的健康发展，离不开科学有效的监管机制作保障。在人民调解制度的转型发展过程中，理顺人民调解的监管机制，对于充分发挥人民调解员等各方主体的作用和主观能动性，保障人民调解的群众性、民间性、自治性的本质属性，激发人民调解的活力，发挥人民调解制度的独特功能和优势，乃至保护当事人合法权益，完善我国的纠纷解决机制，维护社会和谐稳定都具有重要意义。人民调解的监管机制是特定的监管主体对人民调解的活动过程，包括人民调解委员会、人民调解员、人民调解员协会及司法行政部门等人民调解活动过程参与者的行为进行监督与管理的过程、方式与制度体系。对人民调解进行监管的目的在于通过对人民调解活动过程的控制和制约，维护人民调解的健康发展，保障其在正常的轨道上运行。人民调解的行业自律监管具有民主参与、多元利益代表和自主自治等特性，可以有效地应对各种复杂问题，我国理想的人民调解监管机制模式应当是行业自律监管主导型的监管机制模式。我国自人民调解制度的确立之初，就开始关注到了对于人民调解的指导和监督问题。多年来司法行政部门和人民法院对于人民调解工作的指导监督对于保障人民调解的积极健康发展起到了十分重要的作用。但我国在对人民调解的监管上也还存在着行业自律监管缺位、行政监管越位、法院的司法监督弱化等不足。对人民调解进行适度的监管具有维护人民调解的社会公益性底线、化解社会风险、保护当事人合法权益等重要价值。从经济学关于公共产品理论的观点来看，人民调解具有受益的非排他性和消费的非竞争性等特点，而且具有某些自然垄断的特征，为了保障人民调解这一公共产品的供给不偏离公共利益的目标，需要引入监管机制对人民调解这一公共产品的供给加以必要的监管。而基于人性弱点理论的立场，考虑到人性弱点的存在，人民调解制度中需要构建一套完善的监管机制，以规范人民调解活动过程参与者的行为，防范人性的弱点在人民调解运行过程中对调解产生不利影响。从治理理论的观点来看，单一的行政监管并不一定是最好的监管方式，在对人民调解的监管上，我们完全可以引入人民调解的行业自律组织和人民法院等多元主体，通过多元合作，充分发挥各方的力量和优势。构建人民调解的监管机制也是保障人民调解组织公共责任实现的重要途径和必然要求。对人民调解的监管应当遵循依法监管原则、公正原则、公开原则及自律与他律相结合等原则，且不能超过必要的限度。当前我国人民调解的行业自律监管在实践中面临着不少障碍，以致没有有效运作起来，而人民调解的行政监管和司法监督同样也还存在不少问题。基于人民调解的性质以及行业自律监管、行政监管和司法监督各自的优缺点，我国对于人民调解的监管应当逐步形成“行业自律监管+适度的行政监管+必要的司法监督”的监管架构，在构建人民调解的行业自律监管机制，完善人民调解的行政监管与司法监督制度的基础上，构建起以人民调解的行业自律监管为基础、外部监管为保障，，以人民调解的行业自律监管为基石、以司法行政机关的行政监管为必要补充、以法院的司法监督为终极保障的系统化、制度化的人民调解监管机制。
[Abstract]:The people's mediation is a legal system with Chinese characteristics and the profound connotation of Chinese traditional culture. It occupies a very important position in the diversified dispute settlement mechanism in China. The healthy development of the people's mediation can not be separated from the scientific and effective supervision machine making guarantee. In the process of the transformation and development of the people's mediation system, the people should straighten out the people. The regulatory mechanism of mediation will give full play to the role and subjective initiative of the various parties, such as the people's mediators, guarantee the mass nature of the people's mediation, the nature of folk nature and autonomy, stimulate the vitality of the people's mediation, give full play to the unique functions and advantages of the people's mediation system, and even protect the legitimate rights and interests of the parties, and improve the dispute solution in our country. The decision mechanism is of great significance for maintaining social harmony and stability.
The regulatory mechanism of the people's mediation is a process of supervision and management of the actions of the people's mediation committee, the people's mediator, the people's mediator Association and the judicial administrative department, including the people mediation committee, the people's mediators, the people's mediators and the administrative departments of the judicial administration, and the supervision of the people's mediation. It is to maintain the healthy development of the people's mediation and ensure its operation on the normal track through the control and restriction of the process of the people's mediation. The self-regulation of the people's mediation of the people's mediation has the characteristics of democratic participation, multi interest representation and autonomous autonomy, which can effectively deal with all kinds of complex problems and the ideal people's mediation supervision in our country. The mode of management mechanism should be the mode of regulatory mechanism leading to the self-regulation of the industry. At the beginning of the establishment of the people's mediation system, our country began to pay attention to the guidance and supervision of the people's mediation. For many years, the judicial administrative department and the people's court have taken the guidance and supervision of the people's mediation to the people's mediation to ensure the people's mediation. The development of health has played a very important role, but in our country, there are still some deficiencies in the supervision of the people's mediation, such as the absence of self-regulation in the industry, the offside of the administrative supervision and the weakening of the judicial supervision of the court.
The moderate supervision of the people's mediation has the important value of maintaining the social public welfare base line of the people's mediation, resolving social risks and protecting the legitimate rights and interests of the parties. From the view of the economic theory of public products, the people's mediation has the characteristics of non exclusiveness and non competitive consumption, and some natural ridges. In order to ensure that the people's supply of public goods does not deviate from the goal of public interest, it is necessary to introduce the regulatory mechanism to the people to regulate the supply of the public product, and based on the position of the theory of human nature, the existence of the human nature weakness needs to be set up in the people's mediation system. The regulatory mechanism, in order to regulate the behavior of the participants in the process of the people's mediation, prevents the human nature from having a negative impact on the mediation of the people's mediation. From the point of view of the theory of governance, a single administrative supervision is not necessarily the best way of supervision. In the supervision of the people's mediation, we can fully introduce the people's tune. The self-discipline organization of the industry and the people's court and other pluralistic subjects, through multiple cooperation, give full play to the strength and advantages of all parties. Construction of the regulatory mechanism of the people's mediation is also an important way and necessary requirement to guarantee the realization of the public responsibility of the people's mediation organization. Principles and combination of self-discipline and heteronomy should not exceed the necessary limits.
At present, the self-regulation of the people's mediation in our country is confronted with many obstacles in practice, so that it has not been effectively operated, and there are also many problems in the administrative supervision and judicial supervision of the people's mediation. Based on the nature of the people's mediation and the self-discipline supervision of the industry, the advantages and disadvantages of the administrative supervision and judicial supervision, our country has the people to do so. The supervision of the civil mediation should gradually form the regulatory framework of "self-discipline supervision in the industry + moderate administrative supervision + the necessary judicial supervision". On the basis of constructing the self-regulation mechanism of the people's mediation, perfecting the administrative supervision and judicial supervision system of the people's mediation, it is based on the self-regulation of the people's mediation. Supervision is the guarantee, the cornerstone of the self-regulation of the industry by the people's mediation, the necessary supplement to the administrative supervision of the judicial administration, the systematization of the judicial supervision of the court as the ultimate guarantee, and the institutionalized people's mediation and supervision mechanism.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D926

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