调解替代判决结案现象探析

An Exploration into the Phenomenon of Lawsuit Settlement by Court Decision Substituted by Conciliation

作为纠纷解决方式之一,调解是我国固有传统文化的重要内容。目前,调解替代判决结案现象是我国强调"重调解"和"调解优先"的司法政策所引发的新问题。调解制度虽然有其深刻的历史传统和一定的现实基础,但在司法实践中以调代判的不科学性和负面影响逐渐凸显。依据数理统计从发生学、法史学进行多角度观察和分析调解替代判决现象的成因及消极影响,提出克服此现象的逻辑路径。必须设计合理的调解程序规范,实现判决的自恰性及制定科学的司法政策,严格遵循调解的自愿原则并建立有效的监督制约机制等具体解决路径。

As one of the dispute resolutions,conciliation is a very important content in the inherent traditional culture of China.Nowadays,the phenomenon that conciliation replaces court decision is a new issue caused by judicial policies which emphasize ＂ value conciliation＂ and ＂ conciliation first＇ in China.It has a profound historical tradition and realistic foundation.However,its unscientific aspects and negative impact are emerging gradually in practice.Starting from mathematical statistics and analyzing deeply the causes and negative influences from the points of view such as statistics,embryology and legal history,this research proposes a logical path to overcome this phenomenon.It also shows clearly it is supposed to design reasonable conciliation program to achieve self-consistency of court decisions,to formulate the scientific judicial policies,to strictly follow the principle of voluntaries of conciliation,and to establish an effective mechanism of supervision and some other specific solution paths.