强制调解释义考——兼评新《民事诉讼法》第122条之“先行调解”

A Study On the Explanation of Mandatory Mediation——concurrently discuss the mediation in advance litigation which has been added in article 122 of the new Civil Procedure Law

强制调解是指根据法律规定或法院命令,针对特定类型民事纠纷而言,启动调解不以当事人双方自愿为前提,从而使调解成为诉讼的前置程序或裁判前置阶段的一种特殊的民事调解制度。与普通民事调解相比,强制调解具有法定性、强制性和前置性等特点。在把握强制调解内涵时,必须厘清强制调解与强迫调解的界限,正确认识强制调解与调解前置、调解的强制性因素之间的关系。新《民事诉讼法》第122条增设的"先行调解"不属于强制调解的范畴,但却蕴含了诉前强制调解的基本雏形,为在适当时机拓展我国强制调解的类型奠定了基础。

Mandatory mediation is a kind of special civil mediation which starts not according to the willingness of the parties, but the requirements of legal provision or the court order so as to making the mediation become the preceding procedure of civil action or the preceding stage of judgment in some specific civil disputes. Com- pared with the ordinary mediation, mandatory mediation has the features of legality, compulsion and preced- ence. When understanding the connotation of mandatory mediation, we must draw a clear demarcation between it and compulsive mediation, grasp the relationship accurately between it and preceding mediation as well as the mandatory factors in mediation. The mediation in advance litigation which has been added in the new revi- sion on Civil Procedure Law does not belong to the mandatory mediation, but entails the basic rudiment and provides the necessity to expanding the types for mandatory mediation at appropriate time.