民事调解书研究
发布时间：2019-06-04 19:30
【摘要】：民事调解书,作为调解或者和解所达成的纠纷解决的最终载体,它不仅是当事人双方意思自治的表示,也是经过法院认可的执行依据。这也就意味着民事调解书和民事判决书的不同,民事调解书在具有法律强制力的同时,还具有明确的契约性。 双方当事人在法院的主持之下,通过更平和的方式来解决纠纷、化解矛盾,其结果不但能直接获得法律强制力的保障实施,甚至比可能会引起上诉的一审判决更加节省时间,能尽快地使事情得以完结。并且,在一些涉及到亲情关系的案件中,无论判决是-种什么样的结果,似乎都会有伤当事人之间的和睦关系；而在某些特殊的民事案件中,判决也不能很好地为当事人确定其权利义务的分配。相比之下,民事调解书就为纠纷的解决提供了另一种可行的方式。 我国的司法体制正在不断地改革过程中,对于民事调解制度的改革也被很多人所关注,而民事调解书作为改革的重要部分,其完善和进步的研究也应被法律理论界和司法实务界所重视。 本文从民事调解书的概念入手,通过对比分析我国以及国外和我国台湾地区有关民事调解书的相关规定,在对民事调解书的自身特点进行剖析之后,针对目前我国民事调解制度中存在的几个问题提出了一点微薄建议。 本文除引言和结语外,正文由四个部分组成,共计30000余字。 第一部分为民事调解书的基本内涵。此部分首先对民事调解书的概念及其与相关名词的联系与区别做出了详细的界定,接着通过民事调解书自身的特点,对其性质进行了分析,并重新定位。 第二部分为民事调解书的比较考察。在此部分,本文详细研究了目前英美法系国家、大陆法系国家以及我国台湾地区对民事调解书的相关规定,以期能够对我国民事调解书的研究提供切实可行的经验。 第三部分对我国民事调解书的契约性及其法律效力进行了仔细的研究。通过与判决书进行对比、以及对司法实践中的案例进行分析,突出了民事调解书的契约性以及民事调解书在法律效力方面与判决书之间存在的差异,并且分析了这两个方面在立法与司法实践中的现状。同时,结合民事调解书的这两个特点,指出了其内容方面存在的一些问题。 第四部分具体分析了我国民事调解书存在的问题及其完善。此部分分别从民事调解书的契约性与法律效力的明确、生效与反悔权的现状及其完善、我国现有调解制度对于超出诉讼请求的规定、民事调解书内容中对可执行条款的约定及其完善以及对司法解释中的几点不完善的地方的思考这几个方面进行了分析与研究。
[Abstract]:Civil mediation statement, as the final carrier of dispute settlement reached by mediation or settlement, is not only the expression of autonomy of the parties, but also the basis of execution approved by the court. This means that the civil mediation statement and the civil judgment are different. The civil mediation statement not only has the legal coercive power, but also has a clear contractual nature. Under the aegis of the court, the parties can resolve disputes and resolve contradictions in a more peaceful way. As a result, the parties can not only be directly protected by legal coercive force, but also save more time than the first instance judgment, which may give rise to appeal. It will bring things to an end as soon as possible. Moreover, in some cases involving kinship, no matter what kind of result the judgment is, it seems that it will hurt the harmonious relationship between the parties concerned. In some special civil cases, judgment can not determine the distribution of rights and obligations for the parties. In contrast, the civil mediation statement provides another feasible way for the settlement of disputes. In the process of continuous reform of the judicial system in our country, the reform of the civil mediation system has also been concerned by many people, and the civil mediation statement, as an important part of the reform, The research of its perfection and progress should also be paid attention to by the legal theorists and judicial practice circles. Starting with the concept of civil mediation statement, this paper compares and analyzes the relevant provisions of civil mediation statement in China, foreign countries and Taiwan, and after analyzing the characteristics of civil mediation statement, In view of several problems existing in the civil mediation system of our country at present, this paper puts forward some meagre suggestions. In addition to the introduction and conclusion, the main body consists of four parts, a total of more than 300000 words. The first part is the basic connotation of civil mediation statement. In this part, the concept of civil conciliation statement and its relationship with related nouns are defined in detail, and then its nature is analyzed and repositioned through the characteristics of civil mediation statement itself. The second part is the comparative investigation of civil mediation statement. In this part, this paper studies in detail the relevant provisions of civil conciliation statements in common law countries, civil law countries and Taiwan, in order to provide practical experience for the study of civil conciliation statements in China. The third part makes a careful study on the contractual nature and legal effect of the civil conciliation statement in our country. Through the comparison with the judgment, as well as the analysis of the cases in judicial practice, this paper highlights the contractual nature of the civil conciliation statement and the differences between the legal effect of the civil conciliation statement and the judgment. And analyzes the current situation of these two aspects in legislation and judicial practice. At the same time, combined with these two characteristics of the civil mediation statement, this paper points out some problems existing in its content. The fourth part analyzes the problems existing in the civil mediation statement and its perfection in our country. This part is based on the clarity of the contractual nature and legal effect of the civil mediation statement, the present situation and perfection of the right of entry into force and repentance, and the provisions of the existing mediation system in our country that exceed the claim of litigation. This paper analyzes and studies the agreement and perfection of the enforceable clause in the content of the civil mediation statement, as well as the consideration of some imperfections in the judicial interpretation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.13
本文编号：2492951
[Abstract]:Civil mediation statement, as the final carrier of dispute settlement reached by mediation or settlement, is not only the expression of autonomy of the parties, but also the basis of execution approved by the court. This means that the civil mediation statement and the civil judgment are different. The civil mediation statement not only has the legal coercive power, but also has a clear contractual nature. Under the aegis of the court, the parties can resolve disputes and resolve contradictions in a more peaceful way. As a result, the parties can not only be directly protected by legal coercive force, but also save more time than the first instance judgment, which may give rise to appeal. It will bring things to an end as soon as possible. Moreover, in some cases involving kinship, no matter what kind of result the judgment is, it seems that it will hurt the harmonious relationship between the parties concerned. In some special civil cases, judgment can not determine the distribution of rights and obligations for the parties. In contrast, the civil mediation statement provides another feasible way for the settlement of disputes. In the process of continuous reform of the judicial system in our country, the reform of the civil mediation system has also been concerned by many people, and the civil mediation statement, as an important part of the reform, The research of its perfection and progress should also be paid attention to by the legal theorists and judicial practice circles. Starting with the concept of civil mediation statement, this paper compares and analyzes the relevant provisions of civil mediation statement in China, foreign countries and Taiwan, and after analyzing the characteristics of civil mediation statement, In view of several problems existing in the civil mediation system of our country at present, this paper puts forward some meagre suggestions. In addition to the introduction and conclusion, the main body consists of four parts, a total of more than 300000 words. The first part is the basic connotation of civil mediation statement. In this part, the concept of civil conciliation statement and its relationship with related nouns are defined in detail, and then its nature is analyzed and repositioned through the characteristics of civil mediation statement itself. The second part is the comparative investigation of civil mediation statement. In this part, this paper studies in detail the relevant provisions of civil conciliation statements in common law countries, civil law countries and Taiwan, in order to provide practical experience for the study of civil conciliation statements in China. The third part makes a careful study on the contractual nature and legal effect of the civil conciliation statement in our country. Through the comparison with the judgment, as well as the analysis of the cases in judicial practice, this paper highlights the contractual nature of the civil conciliation statement and the differences between the legal effect of the civil conciliation statement and the judgment. And analyzes the current situation of these two aspects in legislation and judicial practice. At the same time, combined with these two characteristics of the civil mediation statement, this paper points out some problems existing in its content. The fourth part analyzes the problems existing in the civil mediation statement and its perfection in our country. This part is based on the clarity of the contractual nature and legal effect of the civil mediation statement, the present situation and perfection of the right of entry into force and repentance, and the provisions of the existing mediation system in our country that exceed the claim of litigation. This paper analyzes and studies the agreement and perfection of the enforceable clause in the content of the civil mediation statement, as well as the consideration of some imperfections in the judicial interpretation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.13
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