我国家事调解程序前置的立法设计

Legislative Design of the Pre-Procedure of Family Mediation in China

我国《民事诉讼法》对家事调解程序前置没有明确规定,法院在家事审判改革中对其适用模式也存在很大差异性。我国要制定单独的"家事诉讼程序法"必须基于"程序相称"和"调审分离"诉讼理论,设立相互独立的家事调解程序和家事审判程序(包括家事诉讼程序和家事非诉讼程序),并且明确规定将家事调解程序前置于家事审判程序。独立的家事调解程序前置立法设计包括:界定家事调解程序前置的概念和属性;明确附设法院的家事调解委员会及其人员法律地位;完善家事调解程序前置的具体制度,理顺其与家事审判程序的衔接关系等。

The pre-procedure of family mediation in our country is not clearly stipulated in the Civil Procedure Law,and there are also great differences in the mode of application of the court in the reform of family trial.China's future"Family Procedure Law"should establish independent family mediation procedures and family trial procedures(including family litigation and non-litigation)based on the theory of"procedural proportionality"and"separation of mediation and trial".And clearly stipulate that the family mediation procedures should be placed before the family trial procedures.The legislative design of independent the pre-procedure of family mediation includes:defining the concept and attributes of the pre-procedure of family mediation;clarifying the legal status of the family mediation committee and its personnel of the annexed to court;perfecting the specific system of the pre-procedure of family mediation,in order to straighten out the connection between the pre-procedure of family mediation and family trial procedure,etc.