纠纷自行和解的权理基础——意思互动与利益衡平

On the Jurisprudential Basis of the Civil Right for Citizens to Reconcile Their Disputes by Themselves in the Perspective of Expression Reciprocity and Interest Balance

私权自治理论是纠纷和解的理论基础。按照私权自治理论,民事主体可以自己的意志判断设定自己的权利义务,主体的意志不仅是权利义务的渊源,而且是其发生的根据。纠纷的私权性内在地要求纠纷的解决应建立在私权自治的基础上,通过纠纷当事人的意思互动达成和解协议,实现当事人之间的利益衡平。纠纷的社会性则外在地要求当事人的和解协议亦应体现社会的公平正义与当事人的利益衡平。纠纷自行和解是以当事人意思为核心的法律行为在私法领域内的平等交涉以及当事人基于对收益、成本、效率、机制等诸多要素比较衡量的理性选择。以私权自治与利益衡平为内容的纠纷和解,彰显了私权自治的私法精神,同时兼顾了社会、纠纷当事人的利益衡平。

It is well acknowledged in academic circles that the theoretical basis of reconciliation of civil disputes is the autonomy of civil rights.Based on this theory,a civil subject has the right to state his or her right and duty according to his or her own will and thus the subject＇s expression is not only the source of his or her right and duty but also the basis on which the right and duty exist.The intrinsic traits of civil disputes require that civil disputes be settled on the principle of autonomy of civil rights on which the concerned parties can make a reconciliation agreement through their expression reciprocity so as to realize an interest balance between them.The social trait of civil disputes extrinsically requires that the reconciliation agreement made by the concerned parties should embody social justice and the interest balance between the concerned parties.The citizens＇ reconciliation of their disputes by themselves lies in the parties＇ equal dialogue,during which the parties express their intentions according to their civil right and make their rational choice according to interest,cost,efficiency and system.The reconciliation of civil disputes by citizens themselves reflects the principle of autonomy of civil rights and interest balance.