我国基层法院附设调解机制研究
发布时间：2019-06-14 16:05
【摘要】：调解是我国传统历史文化的传承,它作为一种文化已经在实践中俨然成为纠纷解决的重要途径。由于现代社会经济发展迅速,人们交往越来越频繁,更主要的是司法进程的加快,人民的法律意识逐渐增强,随之带来的就是法院案件数量的飙升。其中基层法院又是我国司法困境的前沿阵地,大量的案件压力让基层法院疲惫不堪,其中不乏一些简单的民事纠纷案件。法院调解,即狭义上的诉讼调解是我国法院最为常用的结案方式,但是随着案件数量的增加和案件复杂性、专业性等特点的变化,使得诉讼调解弊端越来越明显。在审判方式改革和司法制度改革的浪潮中,世界各国都意识到了这个问题。在全球多元化纠纷解决机制的发展如火如荼的今天,ADR已经不仅仅是独立于法院诉讼程序的纠纷解决措施,它逐渐成为法院诉讼程序的一环,成为司法ADR。我国司法实务界在倡导“大调解”机制的背景下,努力探索调解的多元化解决途径。很多基层法院受命成为试点法院开始了法院附设调解的探索模式。法院附设调解是司法ADR中最为典型的机制,其能够在法院中自由穿梭也能在ADR中如鱼得水。其双重属性可以缓解一定的案件压力、节约了司法资源和维持人际关系等功能。当今中国不管从理论界还是实务界对法院附设调解机制都开辟了自己的领域,但毕竟我国处于刚刚起步阶段,立法没有跟上,缺乏相应的程序要求。 本文在借鉴域外已有的经验基础上,结合我国一些试点的基层法院探索模式,建构出一种适合我国法院附设调解的模式作为参考。我国理论界有很多对该机制的著述,本文摘取部分进行整理归纳,着重提出一些共同的理念并结合自己的一些看法。 本文第一章阐述了基层法院附设调解机制的理论探讨,分别从概念、理论研究前沿和特点及价值等方面一一论述,并提出设立该机制于基层的原因分析,为全文的展开起到理论铺垫的作用。 本文第二章主要描述我国基层法院附设调解机制建立的必要性。分别从目前基层组织调解存在的问题和制度理念及当事人权力实现等角度阐述该机制建立是势在必行。 本文第三章主要描述我国基层法院附设调解机制建立的可行性。分别从文化、国情、法律法规角度阐述。说明我国在基层法院建立该机制是解决我国纠纷的最好途径,同时通过第二部分介绍,列明我国基层一些具有代表性的法院附设调解机制,说明该机制在我国试点运行的效果。 本文第四章先从世界两大法系角度介绍域外具有代表性的国家(美国、澳大利亚、德国和日本)法院附设调解制度,描述其历史和运行状态,为我国法院附设调解机制的建立提供有益的借鉴 本文第五章通过结合第一章理论构建我国基层法院附设调斛机构的原则构建,分别从四个具有代表性的角度阐述,致力于从思想上建立法院附设调解机制；然后结合第二章、第三章和第四章进行制度构建,主要通过结合可行性(即我国有建立该机制的资源)和国外及基层试点法院的探索模式的借鉴,为我国基层法院附设调解模式的建立提出自己的具体构想。 最后希望通过在“大调解”的背景,结合多元化纠纷解决机制的理念,将我国人民调解、行政调解和司法调解有机结合而非各自为营的独立运作,这样的探索模式才适合我国基层法院建立自己的多元化纠纷解决模式。
[Abstract]:The mediation is the inheritance of the traditional Chinese culture, and it is an important way to solve the dispute as a kind of culture in practice. Because of the rapid economic development of the modern society, people's communication is becoming more and more frequent, more importantly, the acceleration of the judicial process and the gradual enhancement of the legal consciousness of the people, with the result that the number of cases in the court has soared. The grass-roots court, in turn, is the front position of the judicial dilemma in our country. The pressure of a large number of cases is exhausted by the grass-roots courts. There are some simple cases of civil disputes. The mediation of the court, that is, the mediation in the narrow sense is the most commonly used case of the court in our country, but with the increase of the number of cases and the change of the complexity and the professionalism of the case, the malpractice of the litigation mediation is becoming more and more obvious. In the tide of the reform of the mode of trial and the reform of the judicial system, all the world's countries are aware of the problem. In the development of the global diversified dispute settlement mechanism, the ADR is not only a dispute settlement measure which is independent of the court proceedings, but it gradually becomes a part of the court proceedings and becomes a judicial ADR. In the background of advocating the "large mediation" mechanism, the judicial practice community of our country tries to explore the multi-diversity solution of mediation. A number of grass-roots courts have been ordered to become the pilot court to initiate a court-attached search model. Court-attached mediation is the most typical mechanism in the judicial ADR, which can be freely shuttled in the courts and can also be found in the ADR. The dual attribute of the invention can be used for relieving certain case pressure, saving the judicial resources and maintaining the interpersonal relationship and the like. China, whether from the theory or practice community, has opened up its own field, but after all, our country is in the initial stage, the legislation has not kept up, and the corresponding procedure requirements are lacking. On the basis of reference to the existing experience in our country, this paper constructs a model which is suitable for the mediation of the court of our country as the reference, based on the exploration model of the basic court of some of our country's pilot. There are a lot of work on the mechanism in the theoretical circle of our country. The paper is to draw some of the paper, and then to put forward some common ideas and to combine some of their own views. The first chapter of this paper expounds the theoretical study of the mediation mechanism attached to the grass-roots court, discusses from the aspects of the concept, the theoretical research frontier, the characteristic and the value, and puts forward the reason analysis of the establishment of the mechanism in the base course, which is the theoretical foundation for the development of the full text. The second chapter mainly describes the establishment of the mediation mechanism of the grass-roots court in China. The necessity of the establishment of the mechanism, such as the existing problems of the mediation of the grass-roots organizations, the concept of the system and the realization of the power of the parties, etc. It is imperative that the third chapter mainly describe the mediation machine attached to the grass-roots court in our country. The feasibility of the establishment of the system. From the culture, the national condition, the method, The article shows that the establishment of the mechanism in the grass-roots court is the best way to resolve the disputes in our country. At the same time, through the second part, it lists some representative court-attached mediation mechanisms of the grass-roots level in our country. The fourth chapter of this paper is to introduce the mediation system of the foreign representative countries (the United States, Australia, Germany and Japan) from the perspective of the two legal systems in the world. The state of its history and operation is to set up a mediation mechanism for our country's court. This paper provides a useful reference for the establishment of the basic court of our country by combining the first chapter with the first chapter to construct the principle of the establishment of the set-up institution attached to the grass-roots court in our country. The establishment of the mediation mechanism of the court is established on the basis of the second, the third and the fourth chapter, and the mediation model is set up for the grass-roots court in our country through the reference of the feasibility (that is, the resources for the establishment of the mechanism in China) and the exploration model of the foreign and grass-roots pilot court. In the end, it is hoped that the people's mediation, administrative mediation and judicial mediation should be carried out in the background of the "large mediation", in combination with the concept of the multi-dispute settlement mechanism. The exploration model is suitable for the construction of the grass-roots court in China, rather than the independent operation of the camp.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
本文编号：2499512
[Abstract]:The mediation is the inheritance of the traditional Chinese culture, and it is an important way to solve the dispute as a kind of culture in practice. Because of the rapid economic development of the modern society, people's communication is becoming more and more frequent, more importantly, the acceleration of the judicial process and the gradual enhancement of the legal consciousness of the people, with the result that the number of cases in the court has soared. The grass-roots court, in turn, is the front position of the judicial dilemma in our country. The pressure of a large number of cases is exhausted by the grass-roots courts. There are some simple cases of civil disputes. The mediation of the court, that is, the mediation in the narrow sense is the most commonly used case of the court in our country, but with the increase of the number of cases and the change of the complexity and the professionalism of the case, the malpractice of the litigation mediation is becoming more and more obvious. In the tide of the reform of the mode of trial and the reform of the judicial system, all the world's countries are aware of the problem. In the development of the global diversified dispute settlement mechanism, the ADR is not only a dispute settlement measure which is independent of the court proceedings, but it gradually becomes a part of the court proceedings and becomes a judicial ADR. In the background of advocating the "large mediation" mechanism, the judicial practice community of our country tries to explore the multi-diversity solution of mediation. A number of grass-roots courts have been ordered to become the pilot court to initiate a court-attached search model. Court-attached mediation is the most typical mechanism in the judicial ADR, which can be freely shuttled in the courts and can also be found in the ADR. The dual attribute of the invention can be used for relieving certain case pressure, saving the judicial resources and maintaining the interpersonal relationship and the like. China, whether from the theory or practice community, has opened up its own field, but after all, our country is in the initial stage, the legislation has not kept up, and the corresponding procedure requirements are lacking. On the basis of reference to the existing experience in our country, this paper constructs a model which is suitable for the mediation of the court of our country as the reference, based on the exploration model of the basic court of some of our country's pilot. There are a lot of work on the mechanism in the theoretical circle of our country. The paper is to draw some of the paper, and then to put forward some common ideas and to combine some of their own views. The first chapter of this paper expounds the theoretical study of the mediation mechanism attached to the grass-roots court, discusses from the aspects of the concept, the theoretical research frontier, the characteristic and the value, and puts forward the reason analysis of the establishment of the mechanism in the base course, which is the theoretical foundation for the development of the full text. The second chapter mainly describes the establishment of the mediation mechanism of the grass-roots court in China. The necessity of the establishment of the mechanism, such as the existing problems of the mediation of the grass-roots organizations, the concept of the system and the realization of the power of the parties, etc. It is imperative that the third chapter mainly describe the mediation machine attached to the grass-roots court in our country. The feasibility of the establishment of the system. From the culture, the national condition, the method, The article shows that the establishment of the mechanism in the grass-roots court is the best way to resolve the disputes in our country. At the same time, through the second part, it lists some representative court-attached mediation mechanisms of the grass-roots level in our country. The fourth chapter of this paper is to introduce the mediation system of the foreign representative countries (the United States, Australia, Germany and Japan) from the perspective of the two legal systems in the world. The state of its history and operation is to set up a mediation mechanism for our country's court. This paper provides a useful reference for the establishment of the basic court of our country by combining the first chapter with the first chapter to construct the principle of the establishment of the set-up institution attached to the grass-roots court in our country. The establishment of the mediation mechanism of the court is established on the basis of the second, the third and the fourth chapter, and the mediation model is set up for the grass-roots court in our country through the reference of the feasibility (that is, the resources for the establishment of the mechanism in China) and the exploration model of the foreign and grass-roots pilot court. In the end, it is hoped that the people's mediation, administrative mediation and judicial mediation should be carried out in the background of the "large mediation", in combination with the concept of the multi-dispute settlement mechanism. The exploration model is suitable for the construction of the grass-roots court in China, rather than the independent operation of the camp.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.2
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