民事检察调解——法律监督中的替代性纠纷解决方法

On Civil Procuratorial Mediation

当今社会矛盾日趋多元化,单一的纠纷解决机制已无法适应现实的需要,替代性纠纷解决方法成为司法的重要路径。检察机关作为法律监督机关应当将"检调对接"纳入社会大调解格局,在履行对法院民事审判权监督的同时,积极参与民事纠纷的化解,促进社会和谐,体现法律监督中的公共服务职能。然而,民事审判检察监督中引入调解、和解却缺乏法律的具体规定。它是否属于法律监督权范畴?如果不是,那这种替代性纠纷解决方法的运用会不会弱化检察机关对民事审判权的监督?民事检察调解是否会损害法院裁判的既判力及胜诉方的合法权益?以上问题均需在理论上进一步厘清。立足于民事检察调解的现实价值可知,在尊重私法自治、契约自由的基础上,法律监督与替代性纠纷解决及法院裁判的既判力是可以兼容的。民事检察调解应遵循自愿和尊重当事人处分权原则、衡平原则、效率原则、正当程序原则。界定民事检察调解的范围和模式对司法实践与民事诉讼立法有所裨益。

Facing an increasing number of civil disputes and conflicts,in order to satisfy the different interest demands of both parties or all parties involved in the case and balance and coordinate the relationship between all parties,the prosecuting authority,as the legal supervision organ,should include the ″connection between prosecution and mediation″ into the pattern of social mediation,supervise the civil jurisdiction of the court and actively participate in the mediation of civil disputes.The legal supervision and the settlement of conflicts and disputes of the prosecuting authority are compatible.In other words,the mediation during civil prosecution is also the extension of legal supervision function.It is propitious to judicial economy,effective settlement of conflicts and realization of the legitimate interests and appeals of the parties.Based on both parties’ high autonomy of their legal properties and legitimate interests,the retrial procedure of the court can not only withdraw or change the wrong judgment of the original trial,but also preside over the mediation between the parties involved.The latter is prevailing.Similarly,when prosecuting authority discovers the wrong civil judgment which has become effective,it can also preside over the mediation between the parties involved or guide the parties involved to reach amicable settlement（except the cases involving national interests,public interests,breach of laws and rules of the judge）,and it can supervise and correct the wrong effective judgment through the way of civil counter-appeal.On the one hand,the prosecuting authority supervises and corrects the wrong effective judgment and maintains the judicial fairness by filing counter-appeal according to the orientation of the constitution and laws;meanwhile,it can intervene in the dispute mediation and conciliate conflicts and controversies in proper and reasonable way.Besides,the mediation and settlement of lawsuit made by prosecuting authority indirectly change the original effective judgment（in judicial practices,when the prosecuting authority discovers the wrong effective civil judgment,it can take civil mediation as a way to correct wrong judgment）.On the other hand,according to the principles of party autonomy,when the mediation during civil prosecution intervenes in civil disputes as the public power,it should keep rational,deferential and neutral.The settlement by agreement and the contents of agreement should be decided by the parties involved and the intervention of state coercive power should be reduced.The prosecuting authority only plays a role in guiding the procedures and making suggestions.Whether the final mediation is accepted should be decided by the parties involved.The prosecuting authority should believe that the parties involved have better understanding of the advantages and disadvantages of the mediation.After all,as to the wrong judgment,the prosecuting authority has the right to start retrial procedure through counter-appeal,the original judgment might be changed and the original winning party may lose the entire case.Therefore,mediation during civil prosecution will not cause negative impact on the rights and interests of the winning party（respondent）.This paper combs the relationships between civil prosecution and res judicata of the effective judgment,between legal supervision and dispute settlement,and between applicable rules and worldly wisdom from the positive perspective and brings forward the principles of mediation during civil prosecution;according to the characteristics of the current civil disputes,the scope and methods of mediation during civil prosecution are put forward so as to introduce the mediation during civil prosecution into Chinese civil action legislation and provides theoretic foundation for the present ″connection between prosecution and mediation.″