商事调解及其司法确认的发展现状反思与制度设计建议

Reflections on the Present Situation of Commercial Mediation and Its Judicial Confirmation and Suggestions on System Design

《人民调解法》自推出以来就被展开了充分讨论,这些学术探讨对当前除人民调解以外的其他多元化纠纷解决机制的发展也起到了推动作用,尤其是在商事调解领域。种种探讨均表明建立和完善商事调解机制是当前为法院分流案件的有益尝试,但学理上在与商事调解协议并立的司法确认制度方面尚无显著研究成果,对实践中商事调解及其司法确认的交互性发展无法起到良好的指导效果。本文试图从商事调解机制运营现状和目前我国立法中有关于商事调解协议的司法确认制度做出系统梳理,探讨二者衔接的理想状态,找寻二者实际操作中存在的对接问题并做根源性分析,以期对激活我国商事调解的发展提出一些优化设计与制度建议。

The People’s Mediation Law has been fully discussed since its introduction, and these academic discussions have contributed to the development of the present diversified dispute settlement mechanisms other than the people’s mediation, especially in the field of commercial mediation. Various discussions show that the establishment and improvement of commercial mediation mechanism is a useful attempt to divert cases for the court at present. However, as for the judicial confirmation system(paralleled with the agreement of commercial mediation in theory), no significant research findings have been found, which has no guiding effect on the mutual development of commercial mediation and its judicial confirmation in practice. This paper tries to sort out the current situation of the commercial mediation mechanism and the judicial confirmation system of the commercial mediation agreement in our country’s current legislation, This paper probes into the ideal state of the two connection, finds out the connection problem in practice and analyzes the root cause, in the hope of putting forward some optimized design and system suggestions for activating the development of commercial mediation in China.