非诉调解前置主义的反思与走向

The Reflection and Trend of the Doctrine of Non-Litigation Mediation in Advance

实行非诉调解前置主义,有助于推动相当数量的纠纷在诉前分流、增加非诉调解的案源、促成纠纷平和低廉地解决。探索建立立案前的调解前置程序,事实上具有强制性。法院急功近利地争取诉源治理的政绩和迫不得已地追求办案压力的疏减,使得非诉调解前置主义在我国司法实践中已经变相存在。强制特定纠纷的当事人参加非诉调解,不构成对调解自愿原则的颠覆。非诉调解前置主义与调解自愿原则之间不存在不可调和的矛盾。诉前调解的含义回归到司法文件的界定,可使得委派调解顺利地成为非诉调解前置主义的实现载体。立法规定非诉调解前置主义,涉及到对诉讼与非诉调解之关系的重大调整和对诉权限制之合理性的证成,不可交由司法解释或司法文件完成,民事诉讼程序繁简分流改革试点期满后的修法可为非诉调解前置主义入法提供良机。非诉调解前置主义之适用范围的负面清单应采取例示主义,正面清单应采取列举主义并应同时重点考虑争议标的额和多发案由两个因素。为配合非诉调解前置主义的运行,诉前财产保全规则应做适当的改进。

The implementation of the doctrine of non-litigation mediation in advance helps promote the diversion of a considerable number of disputes before litigation,increase the sources of cases of non-litigation mediation,and facilitate the peaceful and low-cost settlement of disputes.Exploring the establishment of pre-mediation procedures before filing a case is in fact mandatory.The court’s eagerness to strive for the achievement of the governance of the litigation sources and the unavoidable pursuit of relieving the pressure of handling cases have made the doctrine of non-litigation mediation in advance exist in disguised form in our judicial practice.Forcing the parties to specific disputes to participate in non-litigation mediation does not damage the principle of voluntary mediation.There is no irreconcilable contradiction between the doctrine of non-litigation mediation in advance and the principle of voluntary mediation.The meaning of pre-litigation mediation returns to the definition of that in judicial documents,which can make the designated mediation smoothly become the realization carrier of the doctrine of non-litigation mediation in advance.The legislation of the doctrine of non-litigation mediation in advance which involves the significant adjustment of the relationship between litigation and non-litigation mediation,and the justification of the rationality of the limitation of litigation rights,should not be completed by judicial interpretations or judicial documents.However,the revision of the law after the expiration of the reform of separating simple cases from complicated ones of civil procedures can provide a good opportunity for the doctrine of non-litigation mediation in advance to be introduced into the law.For the scope of application of the doctrine of non-litigation mediation in advance,its negative list should adopt illustration doctrine,and the positive list should adopt enumeration doctrine with strong consideration of two factors that the amount of dispute and frequent causes of cases.In order to coordinate the operation of the doctrine of nonlitigation mediation in advance,the property preservation before litigation rules should be appropriately improved.