论民事诉讼二审中和解协议的性质——最高人民法院2号指导性案例评析

On Nature of the Settlement Agreement reached in the Second Trial of Civil Litigations——An Analysis of the Second Guiding Case issued by the Supreme People's Court

民事诉讼二审审理期间因当事人达成和解协议而撤诉,但被上诉人反悔,不履行或者不完全履行和解协议的争议,其实质乃为二审中和解协议性质认定的分歧。我国宜采德日"一行为两性质说",承认和解协议同时具有私法行为和诉讼行为两方面的性质。最高人民法院2号指导性案例对此问题的明确,对维护裁判统一和司法权威具有重要意义,但其仍未能穷尽司法实践情形,也缺乏对上诉期间和解协议性质的考虑。

Where the parties have reached a settlement agreement during the second trial and the litigation withdrawn, a controversy arises when the appellee goes back on the agreement and refuses to perform or incompletely performs the agreement. The essence of this controversy is how to understand the settlement agreement. This paper suggests adopting the theory of ＂one behavior bearing two features＂ which is developed in Germany and Japan, that is, to confirm that the settlement agreement has private law features as well as litigation features. The second guiding case issued by the Supreme People＇s Court has clarified the issue, which is beneficial to maintaining the unity of trials and judicial authority. But there is still room for improvement for the lack of consideration of features of the settlement agreement during the appeal.