家事纠纷的特质性及其调解机制的构建

On Characteristics of Family Dispute and Construction of Family Mediation Mechanism

家事纠纷是发生于家庭内部并以家庭成员为争议当事人的民事纠纷,其具有的非理性因素多、隐私性强、对未成年人的危害重、社会公益性大和证据证明难度高等特质性决定了调解机制是解决家事纠纷的最优选择。家事调解包括法院外的家事调解和法院内的家事调解两个方面,故对家事调解机制的构建主要是指对家事纠纷民间调解机制、家事纠纷行政调解机制和法院附设家事调解机制加以相应的制度化和完善化。

Occurring among family members, family disputes are different from other ordinary civil disputes. The consanguinity and kinship between the parties of family disputes conduce to more possibility of reconciliation. This kind of family disputes involves more irrational factors and more privacy. Meanwhile, family disputes do great harm to the minors and are closely related to social welfares. Furthermore, proof is hard to collect in such cases. Based on all the characteristics of family disputes mentioned above, it can be concluded that the mediation mechanism is the natural and optimal choice to resolve those disputes. Family mediation can be divided into family mediation outside court or by the court. The construction of family mediation is institutionalizing and improving the civil mediation to family disputes, the administrative mediation to family disputes and the court-annexed family mediation.