节点文献
我国诉前调解制度研究
【作者】 艾丹；
【导师】 张艳蕊；
【作者基本信息】 中央民族大学 ， 民商法学， 2011， 硕士
【摘要】 “诉前调解”概念陌生,但梳理历史可看到其渐衰却又一直存在的低调与曲折。在国外ADR纷纷兴起及我国构建和谐社会的背景下,我国很多法院已开始尝试各类诉前调解形式,但对于诉前调解认识不同,运用的方式不一,给纠纷当事人带来各种不同的效果。2010年6月《最高人民法院关于进一步贯彻“调解优先、调判结合”工作原则的若干意见》第一次明确提出了“诉前调解”概念,也让我们看到了诉前调解制度在不久的将来被我国立法予以确认的可能性。诉前调解作为一项特殊的调解机制,在诉讼与非诉衔接之间扮演着微妙的角色,对我国诉前调解制度进行研究具有深厚的价值意义。因而,本文笔者拟从我国诉前调解基本理论问题入手,分析诉前调解设立的必要性与可行性,进而总结我国各地诉前调解尝试情况及存在问题；结合国外相关制度的借鉴,探讨诉前调解在我国的制度构建。本文共分为五章。第一章,主要对诉前调解的基本理论进行概述,讨论诉前调解的概念界定及性质分析,并对诉前调解与一些相似易混淆的概念进行辨析,也对下文分析我国诉前调解制度相关问题作理论铺垫。第二章,从我国传统调解的存在问题及诉前调解本身具有的优越性出发,探讨设立诉前调解制度的必要性；同时结合诉前调解在我国具有的深厚历史渊源,以及我国多元化纠纷解决机制的发展现状和现今立法诉讼与非诉讼相结合的契机,分析我国设立诉前调解制度的可行性,为设立诉前调解制度奠定坚定的基石。第三章,介绍我国各地区诉前调解的尝试现状,首先从北京、上海和一些诉前调解运用相对完善的地区为例,介绍我国诉前调解的现状；其次通过现状介绍,探讨我国诉前调解运用存在的不足之处。第四章,通过介绍国外典型,以美国的法院附设调解制度、日本调停制度、我国台湾地区的诉前调解制度为例,结合我国现实背景提取其中值得借鉴的经验做法,分析对我国构建诉前调解制度的启示。第五章,阐述我国诉前调解制度的具体构建。首先分析我国诉前调解制度应具备的五个基本原则,其次分析我国诉前调解应该涵盖的适用范围,诉前调解的人员和机构设置,之后分析我国诉前调解应用的具体阶段步骤,最后分析诉前调解制度的调解期限和费用负担、调解协议的效力等方面,探讨我国诉前调解的理性构建。
【Abstract】 Concept "complaint before mediation" seems strange, but when combing history can be seen its asymptotic failure again, there has been a low-key and tortuous. In foreign countries and China have arisen obtains under the background of building a harmonious society, many Chinese courts have began to try all kinds of lawsuit before mediation model, but for lawsuit before, using different understanding to the mediation model is differ, dispute may cause a variety of different effect. June 2010 the supreme people’s court on further implementation "the mediation of priority, adjustable sentenced to combine" work principles of opinions on first explicitly put forward "complaint before mediation concept," let us also saw the lawsuit before mediation system in the near future were confirmed the possibility of legislation in China.Complaint before mediation has a profound significance. Therefore, this paper the author tries to our lawsuit before basic theoretical issues of mediation, summarizes our country before practice and mediation lawsuit pattern classification, Then in-depth analysis lawsuit before mediation the problems existing in reality and reform, this paper discusses the background of defense in China before the mediation of substantive law and procedural law system consummation.This paper is divided into four chapters: The first chapter, mainly on the basic theory of mediation lawsuit before the paper discussed the concept of lawsuit before mediation definition and nature is analyzed, and the former mediation and some similar lawsuit confusingly concepts were analyzed, also to below analyses lawsuit before because differ and practice mediation define different for theoretical foil.In the second chapter, from China’s traditional mediation of problems and lawsuit before mediation itself has the superiority analysis, discusses established before the necessity of lawsuit system of mediation, In combination with lawsuit mediation in our country has before the profound historical origin, as well as China’s multiplex dispute settlement mechanism status of development and current legislation of legal and non-legal combination of opportunity, analyzes lawsuit establishment, the feasibility of former mediation system for establishing the lawsuit before mediation system do firm foundation.The third chapter, introduced before China’s local lawsuit of mediation, first attempt status from Beijing, Shanghai and some lawsuit before mediation using relatively perfect area as an example, introduces the development status of mediation lawsuit before, Secondly introduced by summarizing our defense situation before mediation using three basic modes of, then the advantages and disadvantages of various mode is analyzed. The fourth chapter, and through introducing foreign typical attached to the United States court mediation system, Japan civil mediation system, Taiwan before the lawsuit as an example, mediation system according to our country’s reality for background extraction which is worth using for reference the experience of legislation and practice, analysis to construct a lawsuit before mediation system enlightenment.The fifth chapter v, Former mediation system illustrates the specific defense construction. This paper firstly analyzes our country sues former mediation system should have the five principles, secondly analyzes the lawsuit should cover before mediation applicable scope, the defense personnel and organization before mediation in China after setting, the analysis of its application to former mediation lawsuit lawsuit, the final analysis stage steps before the mediation period mediation conciliation agreement and expense burden, the validity of our country, discuss aspects of constructing the rational lawsuit former mediation.