先行调解主体研究

A Study on the Subject of the Pre-mediation

我国2012年最新修订的《民事诉讼法》第122条明确规定了先行调解制度,即当事人起诉到法院的纠纷可在其自愿的前提下先行调解。通过分析现行立法规定,可知先行调解是一种法院立案之前的诉讼外调解制度。先行调解在理念上有其存在的必然性,在立法与实践上,却缺乏相应的合理性与正当性。究其原因,法院作为先行调解主体,在立法方面,在费用、工作量、效果、效力、保密性与必要性等方面均欠缺合理性。先行调解主体不应当包括法院。法院可以将先行调解委派给法院外的调解机构或者交由法院内的调解窗口主持进行,如此才能更好地实现调审分离与诉调对接。

The mediation system has been explicitly defined in Article 122 of China's latest revised Civil Procedure Law. The dispute that the parties concerned submit to the court can be mediated in advance on a voluntary basis. Through the analysis of the current legislative regulations, premediation is a mediation system before a lawsuit case. Conceptually speaking, premediation has its necessity of existence, while both legislatively speaking and practically speaking, it lacks the corresponding rationality and legitimacy. This is because as the subject of premediation, the court lacks rationality in terms of legislation, cost, workload, effectiveness, validity, confidentiality, necessity and other aspects. Obviously, the subject of premediation should not include the court. The court can designate the premediation to the noncourt mediation organizations or submit it to the court mediation window to mediate the dispute in order that not only the separation of mediation and judgement but also the docking of litigation and mediation may be better realized.