【作者】 赵昌华；

【导师】 廖永安；

【作者基本信息】 湘潭大学 ， 法律， 2006， 硕士

【摘要】 当代世界无论在何一法系、何一国家，无论在立法层面还是司法层面，调解都受到了前所未有的重视，寻找可替代纠纷解决方式运动(ADR)进行得如火如荼。在我国，自《中华人民共和国民事诉讼法(试行)》实施以来，理论界对国内有关诉讼调解的存废以及改造的争议便没有停止过。20世纪90年代以来，法院司法改革的蓬勃发展、兴起和不断提速，更把民事诉讼调解制度的改革完善问题逼到了理论研究和实务操作的前沿，为总结我国调解制度的理论和实践的阶段性成果，最高人民法院于2004年出台了《关于人民法院民事调解工作若干问题的规定》，但该规定仍有一些不全面、不具体之处。于是对调解制度的研究尘埃未定。笔者曾十几年从事民事审判工作，在司法实践中，感觉到重兴与再构民事诉讼调解制度对于法院走出执行难、涉法上访人数增多、法院公正形象有所降低的困境，不仅可行，而且十分必要，也符合现代法治的方向。笔者对庭前调解模式尤其感兴趣，认为其对提高调解率，体现调解程序的公正性非常有益，值得研究。本文从笔者调查收集到的资料出发，以具中等发达水平地处湘北某市两级法院的审判实务为分析个案，运用实证方法，从国内外司法实践以及诉讼调解制度价值内核的角度，对诉讼调解制度的功能与价值进行透视，认为诉讼调解制度在解决民事纠纷中占有极其重要的地位，应成为解决民事纠纷的主渠道；从现代诉讼调解制度显而易见弊端的改造，我国市场经济的发展和完善所创造的条件和职业化法官队伍的要求三个方面，分析了建立新型调解制度的必要性与可行性；从理念转型，原则体系调整，模式重构以及配套制度的建立等四个方面论证了建立以庭前调解为主的诉讼调解模式的基本构想。笔者希望以此文为法院决策提供参考。更多还原

【Abstract】 In the contemporary world, the conciliation system has been attached such an unprecedented importance, in any legal system and any country. The activity of turning to the ADR spreads like a raging fire. In our country, since the Code of Civil Procedure Law of the People’s Republic of China (trial implementation) has been implemented, the theory world has never stopped debating on maintaining or abolishing the conciliation system in the litigation and its reform. From the 1990s, the court’ s judicial reform has been raised, then developed and exploded, which pushed the subject of reform and perfection of the conciliation system in the litigation to the advancing front of the theory study and practice operation. In order to summarize the phased achievements of the conciliation system in our country both in theory and practice, the supreme people’s court has issued the stipulation on several problems in the work of the civil conciliation in the people’s court in 2004. This stipulation, however, is still not much comprehensive and specific. Seeing that the study of the conciliation system has not yet been completed, the author has made an investigation and study on this subject in the two levels’ courts, situated in a certain city in the north of the Hunan province. With the author’s trial experience on the civil cases, which is more than ten years, He feels that the restore and reconstruction of the civil conciliation system is feasible and also necessary to solve the problem of the difficulties of the enforcement, the increasing number of people who appeals to the higher authorities for help and the depreciation of the just image of the court. It is also in line with the direction of the present law government. The author has a great interest in studying the conciliation model before the hearing. He recognizes that this model can help to enhance the conciliation efficiency and further reflect the fair value of the conciliation process; therefore, it is worth to do some further researches on this model.Taking the trial practices of a medium-developed two levels of court which located in the north of Xiang area as an object of its case study, this thesis gets a perspective to the function and value of the lawsuit mediation system from the judicial practices in and abroad, and the value essence of the lawsuit mediation system adopting a real diagnosis method. It holds a view that lawsuit mediation system plays an important role in civil disputes, on the basis of the investigations made by the author, thus it should be a key channel to solve civil disputes. What’s more, it analyzes the necessity and feasibility of building new mediation system from the following three view points: the reform of the evident malpractice of modern lawsuit mediation system; the circumstances for the development and perfection of the market economy in our country and the professionalism of the judge troop. In addition, it demonstrates the basic conception of establishing the "in-front-of-the-courtyard-mediates" as the main one of lawsuit patterns from idea reforming, principle system adjustment, pattern restructuring and related matching systems. The author believes that the in-front-of-the-courtyard-mediate must have great impact on civil action system, and hopes that this paper will provide some references to the court-decision-making.更多还原