调解与审判适当分离问题研究

Research on the Appropriate Separation of Mediation and Trial

近年来,"调解优先,调判结合"成为我国民事诉讼的重要指导思想。但是,调解与判决的长期结合使当前的法院调解与审判工作深陷困境,法官的双重身份及调解偏好严重削弱了调解的自愿性与保密性,折损了司法公正与权威。调解与审判虽同为法院的纠纷解决方式,但二者在基本功能、适用程序、法律效果和社会效果等方面均存在差异,为了充分发挥二者的功能,保障调解正当性以及当事人的诉权,维护司法公正,应当将调审适当进行分离。

In recent years,“giving priority to mediation,combination of mediation and judgment” has become an important guiding ideology of civil litigation in our country. However, the long-term combination of mediation and judgment made the current court mediation and trial work in deep trouble, the judge's double identity and mediation preference severely weakened the voluntariness and confidentiality of mediation and harmed judicial justice and judicial authority. The court mediation and trial are the same as the way to solve the dispute, but there are differences in the applicable basic function procedures,lawful and social effect in many aspects, the proper separation of mediation and trial is more conducive to give full play to the two functions, ensure the legitimacy of the mediation and the parties right of action, safeguard judicial justice and conform to the development trend of the occupation at the same time.