论调解协议的效力

On the Effectiveness of Conciliation Agreement

调解的核心要素在于合意,基于双方当事人的意思自治而达成的调解协议仍具有民事合同的性质。调解协议的程序性效力主要是由其作为纠纷解决机制的组成部分而由国家立法所赋予的,将其从调解协议的效力中予以剥离,还原调解协议的民事合同属性,维持其作为合同的拘束力与效力,不仅有利于为当事人所享有的反悔权提供合体系性解释,也可以针对实践中强迫调解等现象发挥反制作用。调解协议的效力主要体现于其所具有的确定性拘束力以及确定力之上。前者是其作为民事合同的根本属性,而后者则为其所特有。一旦当事人达成调解协议,如果其效力无瑕疵,即应以协议内容作为确定当事人之间权利义务关系的根据,当事人也不得再以之此前的基础关系作为根据而为请求。

Consensus is the core element of conciliation. The conciliation agreement based on the autonomy of both parties has still the nature of the civil contract. The procedural effectiveness of conciliation agreement is mainly endowed by the national legislation as part of the dispute settlement mechanism, and should be stripped from the effectiveness of conciliation agreement. Restoring the civil contract nature of conciliation agreement and maintaining its binding force and effectiveness as the contract is not only beneficial to explain the right of rescis- sion of parties concerned in a closed system, but also can play a role of countering such phenomena as the forced mediation in practice. The effectiveness of conciliation agreement is mainly embodied in its binding force of cer- tainty and the determining force. The former is its fundamental attribute as a civil contract while the latter is its uniqueness. Once the conciliation agreement is concluded between the defects, its content should be regarded as the basis of determining the tween the parties, and the parties are not allowed to make the request parties and its effectiveness has no any relationship of rights and obligations be- on the basis of the previous relationship.