中国传统商会纠纷解决机制之功能分析——以调解为视角

On the Functional Analysis of Traditional Dispute Resolution Mechanism to Chamber of Commerce in China

清末民初的商会调处、商会公断的纠纷解决机制不仅承继中国传统儒家文化的底蕴,亦不乏凸显现代化纠纷解决之功效。鉴于此,通过历史追溯手法,来探讨分析中国传统商会纠纷解决机制的功能演变以及时势因缘,立足于富有传统特色的调解机制,并结合现代替代性纠纷解决的基本理念以及关系紧密群体之理论分析,在区分调解与仲裁的界定以及调解类型分化研究的基础上,对中国传统商会的调解功能予以深入的解构与剖析,以期对我国传统的多元化解纷机制的理论及史料研究有所贡献。

Succeeding to the civilian tradition of dispute resolution by the channel of non-trial,the Chamber of Commerce tried to deal with the commercial disputes by its special means since late Qing, which had taken a great role in the traditional commercial society of China.The dispute resolution mechanism of Chamber during the period of late Qing and early Republic of China not only has inherited Confucian soul,but reflected the efficacy of modern dispute resolution system in a great degree. Therefore,by the perspective of history,the paper observes the functional evolution as well as the current causes of traditional dispute resolution system in China.On the basis of differentiating the concepts of mediation and arbitration and analyzing significant sorts of mediation,the paper tent to focus on the functional analysis of traditional mediation of Chamber in China by reasonably probing into the theory of modern Alternative Dispute Resolution(ADR)and theory of group with close relationship,so as to put forward the novel model of this mechanism to a considerable extent.