论民事诉讼和解制度的立法定位

On the Legislation Orientation for the System of Civil Lawsuit Reconciliation

我国民事诉讼立法缺乏关于诉讼和解程序规则的规定;在民事司法实务中,诉讼和解很多时候被处于"边缘化"地位。这与新形势下要求健全社会矛盾纠纷预防化解机制,完善多元化纠纷解决机制的顶层设计不相吻合。对民事诉讼和解进行以建立程序规则为中心的制度化处理有利于激活其解纷功能。具体地,通过加强法官对诉讼和解程序的管理、尊重当事人在诉讼和解过程中的自愿性、完善律师参与诉讼和解的制度措施、坚持诉讼和解的双重性质、改进诉讼和解法律效力的程序规则来增强诉讼和解程序的驱动力,藉此达到切实发挥诉讼和解解纷功能的目的。

The legislation of civil action in our country lacks the regulations on the rules of the lawsuit reconciliation＇s procedure.Therefore,in the civil judicial practice,litigation settlement was in a ＂marginalized＂position on many occasions,which doesn＇t match with the top design of improving the mechanisms of prevention and resolving of social conflicts and disputes,and perfecting diversified dispute resolution mechanism.It is advantageous for activating the functions of dispute solution of reconciliation to process it institutionally with the establishment of procedural rules as the center. Specifically,by strengthening the management function of the judge in the lawsuit reconciliation procedure,respecting voluntarily of the parties in the lawsuit reconciliation procedure,perfecting systems and measures of lawyer participating in litigation settlement,adhering to the dual nature of the settlement and strengthening the procedural rules of legal effect of the settlement,the driving force of the lawsuit reconciliation procedure could be enhanced in order to achieve the purpose of actually playing reconciliation＇s functions of disputing resolutions.