商事调解概念的主观主义重构

Subjectivism Reconstruction of the Concept of Commercial Mediation

我国国内商事调解与涉外商事调解均面临无法可依的难题,亟待通过商事调解立法予以解决,其前提是将商事调解的概念加以厘清。理解商事调解的概念一般而言存在两种进路:基于纠纷类型定义的客观主义进路与基于调解主体定义的主观主义进路,现有实践中以客观主义进路为主。客观主义进路下的商事调解概念存在三大困境:无法解决人民调解泛化的问题;与民商合一立法体例相抵触;破坏非诉讼程序法体系的融贯性。应建构基于主观主义的商事调解概念,即以商事调解组织为基础定义商事调解,通过组织性质的民间化、组织类型的双轨化、内外部机制的规范化等方式予以实现。商事调解概念也必须兼顾主观主义与客观主义的平衡,即注意商事调解行为在范围、方法、程序等方面对商事调解概念的辅助性制约。

Both domestic commercial mediation and foreign-related commercial mediation are faced with problems that have no legal basis,which need to be solved by commercial mediation legislation.The premise is to clear up the concept of commercial mediation.There are two approaches to understand the concept of commercial mediation:the objectivism approach based on the definition of dispute type and the subjectivism approach based on the definition of mediation subject.The objectivism approach is mainly used in the existing practice.There are three dilemmas in the concept of commercial mediation under the objectivism approach:it cannot solve the problem of generalization of people's mediation,conflicts with the legislative style of civil and commercial integration,and destroys the coherence of the non-procedural law system.The concept of commercial mediation based on subjectivism should be constructed,that is,commercial mediation should be defined on the basis of commercial mediation organizations,and it should be realized through the privatization of organizational nature,the dual track of organizational types,and the standardization of internal and external mechanisms.The concept of commercial mediation must also take into account the balance between subjectivism and objectivism,that is,pay attention to the auxiliary constraints of commercial mediation on the concept of commercial mediation in terms of scope,methods,and procedures and so on.