诉讼和解的逻辑——和解、效率与谈判能力

Conciliation,Efficiency and Negotiation Ability in Settlement of Litigation

国内外学界对诉讼和解的研究主要集中在诉讼和解的发生问题上,对诉讼和解的公平与效率问题尚没有系统的研究。当事人的谈判能力不仅影响诉讼和解的发生,也强有力地影响诉讼和解份额的确定。现实需求的迫切性导致处于经济劣势地位的当事人的贴现率非常低,进而极大地削弱了其谈判能力,而不对等的谈判能力导致低谈判能力当事人接受一个不公平的和解份额。在经济学的意义上,这进一步扭曲了社会经济活动中风险预防的效率。在诉讼和解实践中,很多处于经济优势地位的当事人滥用诉讼权利恶意拖延诉讼或者恶意逼讼,从而导致弱势地位的当事人的权利被打折。所以应当建立诉讼权利滥用惩罚机制,创新能动司法机制,平衡各方诉讼当事人的谈判能力,从而消除司法实践中不合理的贴现效应。

Issues of how legal negotiations take place as they instigate legal negotiation or settlement of litigation have been the focus of research at home and abroad. However, little efforts are made in the sys- tematic study of cooperative surplus allocation. In fact, negotiation abilities of parties involved have effects on both the occurrence and the determination of shares in the legal negotiation. In practice, the e- conomically - underprivileged has low discount rate which is unfairly made use of by the economically - advantaged. Imbalance in negotiation ability results in injustice in conciliation, which leads to low effi- ciency in risk precaution in economic activities. Therefore, punishment mechanism must be established for abuse of litigation rights and innovations have to be introducedto make the judicial system dynamic.