论法院的强制调解

发布时间：2019-06-19 02:39

【摘要】：随着ADR在现代社会中被广泛地应用,其功能和地位也日益提高。调解作为ADR的一种重要形式,尤其被人们重视,由于人们诸多的期望导致调解功能的多样化,这也为调解制度带来了强制性契机。长期以来,自愿原则都是调解的首要原则,其是调解正当化的基础,包括诉诸调解程序的自愿和接受调解结果的自愿。但是现在很多国家对调解制度作出了诸多限制,例如,对某些特殊类型的案件进行强制调解的立法与实践,以及在调解内容上的强制,这反映出扩大调解适用的正当性,但也引起了理论界和实务界的广泛争议,使调解处于合意与强制的紧张关系之中。调解制度中存在强制因素并不意味着否定调解的自愿原则,我们要理性的看待法院调解中的强制因素,通过分析法院强制调解的具体内容、存在的意义,就可以看出法院的强制调解有其存在的合理性,以及和当事人诉讼权利的契合性。也正是由于有强制因素的存在,才会使法院调解取得卓越的成效,但是必须处理好一系列的关系,严防非理性强制的出现,更需要对强制调解的案件的范围、模式进行适当的完善和调整。法院强制调解包括调解启动程序上的强制和调解内容上的强制。法院强制调解有其存在的价值,首先法院强制调解有助于实现效益的最大化；其次法院调解的适度制度化能避免更大的不公平。但是法院强制调解也会产生一些影响,包括积极的影响和消极的影响：法定的强制调解可以缓解司法资源的不足,可以减轻当事人的负担,还有利于特殊类型的案件的和睦解决；裁量性调解启动程序的强制一方面可以扩大调解适用的可能性,另一方面非理性的强制会侵害当事人的程序权利；关于调解内容的强制,其中理性的强制有利于纠纷的及时解决,非理性的强制却会侵害当事人的权利。但是法院强制调解是否应该存在一直是理论界和实务界有争议的问题,主要有否定论和限制论两种不同的观点。纵观世界各国,德国有诉前强制调解制度、日本有民事调停制度、我国台湾地区也有民事强制调解制度,其有益经验可以供我们学习和借鉴。当我国法院调解存在强制因素时,必须处理好调解程序与审判程序、强制与自愿、理性强制与非理性强制、强制与当事人权利保护、法官的强制调解与调审合一模式之间的关系。还要采取一定的措施强化我国法院的强制调解制度,可以从两个方面入手：一方面要构建法院附设的诉前调解制度,要明确诉前调解的案件范围、诉前调解的机构、诉前调解的程序、诉前调解的时限、诉前调解的效力以及诉前调解与诉讼的衔接等一系列的问题；另一方面要强化诉讼过程中的强制调解,即法院应该主动介入调解程序的启动、在调审合一的模式下,要使调审适度分离、适当肯定法院裁决代替调解协议的效力。
[Abstract]:With the wide application of ADR in modern society, its function and status are also increasing day by day. Mediation, as an important form of ADR, has been paid more and more attention. Because of many expectations, the mediation function is diversified, which also brings a mandatory opportunity for the mediation system. For a long time, voluntary principle has been the primary principle of mediation, which is the basis of mediation legitimacy, including voluntary resort to mediation procedure and voluntary acceptance of mediation results. However, many countries have made many restrictions on the mediation system, for example, the legislation and practice of compulsory mediation in some special types of cases, as well as the compulsory mediation content, which reflects the legitimacy of expanding the application of mediation, but also causes a wide range of disputes in the theoretical and practical circles, so that mediation is in a tense relationship between agreement and enforcement. The existence of compulsory factors in mediation system does not mean negating the voluntary principle of mediation. We should rationally look at the compulsory factors in court mediation. By analyzing the specific content and significance of court compulsory mediation, we can see the rationality of the existence of court compulsory mediation and the agreement with the litigants' litigation rights. It is precisely because of the existence of coercive factors that the court mediation will achieve excellent results, but we must deal with a series of relations, strictly prevent the emergence of irrational force, but also need to properly improve and adjust the scope and mode of compulsory mediation cases. Court compulsory mediation includes the compulsory mediation initiation procedure and the compulsory mediation content. Court compulsory mediation has its value. First, court compulsory mediation helps to maximize benefits; secondly, the moderate institutionalization of court mediation can avoid greater injustice. However, court compulsory mediation will also have some effects, including positive and negative effects: statutory compulsory mediation can alleviate the shortage of judicial resources, lighten the burden of the parties, and is also conducive to the harmonious settlement of special types of cases; on the one hand, the enforcement of discretionary mediation initiation procedure can expand the possibility of mediation application, on the other hand, irrational enforcement will infringe on the procedural rights of the parties; With regard to the compulsory content of mediation, rational enforcement is conducive to the timely settlement of disputes, but irrational forcing will infringe on the rights of the parties. However, whether the court compulsory mediation should exist has always been a controversial issue in the theoretical and practical circles, there are mainly two different views: negation and restriction theory. Throughout the world, Germany has a compulsory mediation system before litigation, Japan has a civil mediation system, Taiwan also has a civil compulsory mediation system, its useful experience can be used for us to learn and draw lessons from. When there are mandatory factors in court mediation in our country, we must deal with the relationship between mediation procedure and trial procedure, compulsory and voluntary, rational compulsory and irrational compulsory, compulsory and the protection of the rights of the parties, and the combination of compulsory mediation and mediation of judges. We should also take certain measures to strengthen the compulsory mediation system of the courts in our country, which can be started from two aspects: on the one hand, we should construct the pre-litigation mediation system attached to the court, clarify the scope of the pre-lawsuit mediation case, the organization of the pre-lawsuit mediation, the procedure of the pre-litigation mediation, the time limit of the pre-lawsuit mediation, the effectiveness of the pre-litigation mediation and the connection between the pre-lawsuit mediation and the litigation. On the other hand, it is necessary to strengthen the compulsory mediation in the process of litigation, that is, the court should take the initiative to intervene in the start of the mediation procedure. Under the mode of the unity of mediation and trial, it is necessary to properly separate the mediation and properly affirm the effectiveness of the court decision in lieu of the mediation agreement.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.1;D926.2

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