【作者】 唐峰；

【导师】 谢晖；

【作者基本信息】 山东大学 ， 法学理论， 2011， 博士

【摘要】 纠纷解决是人类永恒的研究课题,而中国社会纠纷解决研究具有现实紧迫性。传统的解纷方式需要反思整合,自决解纷存在失范的风险,诉讼解纷可能导致国家专制,和解纠纷应受重视但需规范。国内对纠纷和解的研究,体现了学科的多样性、方法的多元性,但却存在几个问题：一是将“私了”等同于“和解”,二是将“调解”等根据“合意”解纷的方式排除在和解的范畴之外；三是将和解/私了等同于民间法,同国家法对立：四是研究者的研究过分局限于某领域内的纠纷和解,很难有关于“和解”的一般性问题的结论。国外学者也关注纠纷和解,却与西方法治主义即诉讼中心主义的反思相关联。中国人仍然存在着法治=诉讼=国家垄断纠纷解决权=国家法律之治的观念,这种观念在西方已经受到了批判。根据纠纷解决取决于何方主体意愿,纠纷解决方式可以分为自决、合决、他决三种。合决即和解,重新界定和解的含义,包括了传统意义上的和解、调解、西方法律制度中的辩诉交易等,但与自决、他决等并立,又与私了、私力救济、自力救济、ADR、恢复性司法等概念有着区别和联系。意思自治是和解的本质和基本原则。无论是私法纠纷解决还是公法纠纷解决中,都存在着当事人的意思自治,而公法纠纷解决中的意思自治,有着社会契约论的政治基础、经济人假设的人性基础和公私难分界的现实性基础,意思自治的扩张应受到尊重。作为一种纠纷解决方式的和解,可以被视为一种制度。就制度视角而言,和解制度包含正式的制度和非正式的制度,而原则问题则是制度中的最根本问题。除意思自治原则外,推定原则和程序监控原则也应作为和解制度的原则。主体是和解的结构要素之一。和解纠纷,需要纠纷解决的主体承担当事人和第三人的不同角色。学界在法人的和解当事人资格问题上存在争议。法人可以作为民事主体,自然可以成为民事纠纷和解的当事人主体；法人作为公法纠纷的主体,它可以和解因违反公法行为而引起的民事责任问题,因民事责任的和解进而影响到司法机关对违法犯罪法人公法责任的追究,法人也可以直接同国家司法机关进行辩诉交易来解决刑事责任问题；检察官与犯罪人辩诉交易和解权及公诉、自诉主体权利平等性要求,都可以说明法人具有或应具有公法性纠纷和解的当事人资格。和解中的第三人,不同于诉讼上的第三人,也不同于民法上的第三人。和解中的第三人具有中介、判断、强制功能。根据“官”与“民”的界分,第三人可以分为官方第三人和民间第三人。在当下中国,公、检、法、司这些机关及其工作人员都可以称为“官方第三人”。对公安机关来讲,目前在角色定位上存在着角色冲突,权威也是弱化的,这也导致了和解的偏好。民间第三人分为官方化的第三人,典型如人民调解委员会,而如混混、痞子等纯粹的民间第三人也是活跃在纠纷解决舞台上的重要力量。在一定意义上讲,社会是由“官”、“匪”、“民”三者利用纠纷解决进行共治的社会。规范是和解的结构要素之二。和解纠纷,需要纠纷解决的规范依据。根据“官”与“民”的界分,社会规范可以分为国家规范和民间规范,同时还存在一类软规范——关系规范。这三种规范在纠纷和解中各有其功能,国家规范可以为和解提供制度性支持,可以成为权利诉求的基点,可以成为和解方案的直接依据,可以作为当事人在和解中攻防策略的工具；民间规范则可以支持当事人的权利诉求,可以成为和解的直接依据,可以支撑国家规范,可以传承多元的文化。而由关系、人情、面子三要素组成的关系规范,则可以转移争议,模糊事实,可以确认、改变明规则,增加解纷方案可接受性,可以促使自由裁量权向确定性转换。三种规范是互动的,国家法与民间法的互动呈现不同的具体样态,而关系规范是国家法和民间法互动的变量之一,作为和解主体的纠纷解决者的个性也是规范互动中的一个变量,这两个变量在纠纷自决、裁决中也都发挥着自己的作用。事实是和解的结构要素之三。和解纠纷,需要纠纷解决的事实根据。纠纷和解中的事实,不同于裁决中的事实,它可以具有事实要素概括性特征,可以缺少一般性的事实要素而具有模糊性,实际上是“类型化”的事实,而不需要象裁决中的事实那样具备基本的事实要素；它可以具有证明要求意会性特征,不需要象裁决中的事实那需要证据证明；它的面向具有未来性,可以解决未来的事实,而不象裁决那样只解决先前的事实；它的事实包含的法律关系可以具有复杂性,而不象裁决那样,以不同的法律关系来确定不同的诉讼；它的事实的规范意义可以具有共生性,而不象裁决那样规范意义上是独断的；它的认知主体是双方当事人,具有二元性特征,而不象裁决那样认知主体是法官,具有一元性特征。类型分析,从另一个角度助于深入把握和解。根据我国现行法律规定和实践中的和解情形,依和解的纠纷的法律性质,和解可以分为非法律性纠纷和解与法律性纠纷和解,而后者则又可分为民事和解、行政和解、刑事和解。这些类别的和解,都有许多问题需要研究。为了更好的把握这些“和解类型”,对于民事和解,以法院调解为着力点,比较了法院调解书与判决书的不同,认为调解书很难说“法理”,因而调解和审判应该分离；而对于刑事和解,则以轻伤害案件和解为着力点,比较了我国现行刑事诉讼中自诉和公诉程序的不同,主张应在公诉程序中重视和解；对于行政和解,则以违反治安管理行为的和解为着力点,比较了《治安管理处罚法》中的调解与和解,质疑了两者效力不同的法律规定的合理性。功能分析,是本文对和解的第三个分析视角。和解的功能可以分为个别功能和社会功能。前者是指和解方式在个案纠纷解决中的功能,如解决纠纷、形成规则、归属责任、恢复关系等等；而后者则指和解这种纠纷解决方式在社会中的功能,如复合双重正义、效益考量选择、适应社会结构等等。由于和谐社会的构建是中国共产党的政治理想,而依法治国则是治国方略,因此,探讨和解与和谐、法治的关系尤为必要。构建和谐社会,要尽量预防各种纠纷,又需要妥善解决各种纠纷,需要自决、和解、裁决“三元一体”的纠纷解决机制。尊重和解实际上是尊重人权,和解可以促进人的全面发展。将和解与法治对立的观点,其根源于西方国家主义,具有西方法治主义色彩,要重构法治的和解,中国的问题应中国式解决。更多还原

【Abstract】 Dispute solution is an eternal research subject for mankind. In China, research on dispute solution has its realistic pressingness. Traditional ways to solve dispute need to be reflected and integrated. Self-determination has the risk of getting out of control. Him-determination, i.e. lawsuit may cause national dictatorship. Co-determination, i.e. reconciliation, must be valued but normalized. The domestic research embodies such features as subject-diversity and method-pluralism, but still has several problems:the 1st is to equals "private solution" to"reconciliation"; the 2nd is to exclude such co-determination ways as conciliation from the category of reconciliation; the 3rd is to regard reconciliation or personal solution as folk law, which is opposite to national law; the 4th is that it is confined in some specified realms and difficult to have general discussions and conclusions. The abroad researchers have paid attention to dispute reconciliation, related with the reflection upon the western doctrine of rule-of-law, i.e. lawsuit-centralism. In China, there is a viewpoint that rule-of-law equals to lawsuit, equals to rule-of-state-law, equals to state-monopoly-dispute-solution-power.This has been criticized in the western.According to depending on whose wishes, the ways of solving dispute can be divided into self-determination, co-determination and him-determination. Co-determination can be called reconciliation. The definition of "reconciliation" should be redefined, which includes traditional reconciliation, conciliation and plea bargaining in western legal system and so on, but is opposite to self-determination and him-determination, and different from and connected with such concepts as personal solution, personal relief, self-relief, ADR and restorative justice. Will autonomy is the essence and basic principle of reconciliation. Will autonomy exists in solution of dispute of public law as well as in that of private law. In the former, it has the political foundation of Social Contract Theory, human natural foundation of Hypothesis of Economic, realistic foundation of that it is difficult to distinguish the public from the private. The expansion of will autonomy should get to be respected. As a kind of dispute solution way, reconciliation can also be regarded as a kind of system. From system-visual angle, reconciliation system contains formal and informal system, and the principle is the most basic problem in system. Besides will autonomy principle, presumption principle and procedure monitoring principle should be also the principles of reconciliation system.Subject is one of the structural essential factors of reconciliation. In dispute reconciliation, it needs subjects to play different roles such as the party and the 3rd person. There are arguments over the qualification of legal person among the academic circles. Legal person as a civil subject can become the party of civil legal dispute reconciliation. As the subject of the public legal disputes, legal person can reconcile civil responsibility problem caused by breaking public law, which influences the legal person’s public legal responsibility that the judicial organ want to investigate. Legal person also can directly do plea bargaining with the judicial organ in order to solve criminal responsibility problem. The power (or the right) of the public prosecutor and criminal person to do plea bargaining can illustrate that legal person has or should have the party’s qualification in public legal dispute reconciliation. The demand for "the same subjects the same rights" both in public and private prosecution can have the same function too. The 3rd person in reconciliation is different from that in lawsuit, also different from that of civil law. In reconciliation, the 3rd person has such functions as medium, judgement and compulsion. According to "official" and "folk", the 3rd persons can be divided into the official 3rd persons and the nongovernmental 3rd persons. Today in China, the public security, the procuratorate and the court and their staff can be called as "the official 3rd persons. The public security organ now has role conflicts and its authority is weak, which has also resulted in the tendency to reconcile disputes. The nongovernmental 3rd persons can be divided into the officialized ones typically such as the People’s Conciliation Committees. Pizi, hunhun and other pure nongovernmental 3rd persons also play important roles in dispute solution. On certain meaning, society is ruled by the official, together with the bandit and the people through dispute solution.Norm is the 2nd structural essential factor of reconciliation. It needs norms to reconcile disputes. According to "official" and "folk", social norms can be divided into national norms and folk norms. Meanwhile, there still has a kind of soft norms-guanxi norms, also can be called guanxi rules. Each of these three kinds of norms in dispute reconciliation has its own functions. National norms can provide reconciliation with systematical supports, become the basic point of claims for rights, get to be the direct basis of the program of dispute reconciliation, be taken as the strategy tool for assault and defend. Folk norms can support the claims for rights of the involved party, become the direct basis of the program, support national norms, pass on and inherit multiculturalism. Guanxi norm, which consists of guanxi, human feelings and face, may transfer the argument, and vague the fact, confirm or change the clear rules and enhance the acceptability of the program of dispute solution, make discretion ascertainable. Three kinds of norms interact mutually. Interaction of national norms and folk norms presents different specific forms. Guanxi norm is a variable in the interaction of the national norm and the folk norm as well as the personality of the dispute-solver. These two variables have their effects in dispute self-determination and him-determination.Fact is the 3rd structural essential factor of reconciliation. It needs facts to reconcile disputes. The fact in reconciliation has different characteristics than that in lawsuit. In reconciliation, the fact can have the generality feature lack of essential factors, so it is vague and actually typed-fact. In lawsuit, the fact needs have the essential factors. In reconciliation, the fact may be sensed but in lawsuit it needs to be proved. In reconciliation, the fact faces the future and solves future problems but in lawsuit it solves the past problems. In reconciliation, the fact contains legal complicated relations, but in lawsuit, different suits are ascertained by different legal relations. In reconciliation, different norm-meanings of the fact can coexist but in lawsuit only one norm-meaning can exist. In reconciliation, both parties are cognitive subjects, but in lawsuit only the judge is the cognitive subject. The former are binary, the latter is unitary. Type analysis helps to grasp reconciliation from another angle. On the basis of our current law and practical circumstance, and according to the legal nature of the reconciled disputes, reconciliations can be divided into nonlegal dispute reconciliations and legal dispute reconciliations. The latter can be subdivided into civil dispute reconciliations, administrative dispute reconciliations, criminal dispute reconciliations. All of them have a lot of problems to be studied. In order to master better these reconciliation types, we give emphasis on court conciliation to civil dispute reconciliations. Through the comparison between conciliation paper and written judgement, we find that it is very difficult to give the adjudicative reasons in the former, so that the conciliation procedure and the judicial procedure should be separated. To criminal dispute reconciliation, we emphasize the victim-offender reconciliation of slight wound, and advocate attention should be paid on reconciliation in public prosecution. To administrative dispute reconciliation, we take the reconciliation of acts violating the public security administration as the emphasized example, compare conciliation and reconciliation in narrow sense in Law on Public Security Administration Punishments, and question the rationality of the different authentic legal regulations for them.Functional analysis is the 3rd visual angle to reconciliation. Functions of reconciliation can be divided into individual ones and social ones. The former mean such functions as solving disputes, forming rules, attributing responsibilities, restoring relationship etc. in solving individual cases. The latter mean the functions the reconciling way as a dispute solution mechanism may have in society. Reconciliation can compound double justices, help to examine, weigh and select benefits, meet social structure and so on.Because harmonious society foundation is the political ideal of the Communist Party of China, and running state according to law is her general plan, it is necessary to discuss the relation of reconciliation, harmony and rule-of-law. To found harmonious society needs to prevent various disputes as well as to solve various disputes properly. Also it needs a ternary organic whole dispute solution mechanism consisting of self-determination, reconciliation and lawsuit. It is to respect human rights actually to respect reconciliation, and reconciliation can promote the integrated development of man. The viewpoint that takes reconciliation as the opposite to rule-of-law originated from western nationalism and has western colour of rule-of-law. It needs to rebuild reconciliation under law, and the problems of China should be solved through Chinese way.更多还原