民事纠纷诉前强制调解入法逻辑证成与路径选择

The Logical Justification and Path Selection of the Compulsory Prelitigation Mediation of Civil Disputes

冲破“合意方能调解”的传统思想束缚,在立法中明确规定诉前强制调解制度。该制度的设立已有充足的政策基础和司法实践探索,并且符合调解自治原理,同时基于当事人多元利益保护的价值判断,对其裁判请求权的限制符合正当性。为保障被移转的正义在调解程序中得以实现,应推动实现程序法定,明确制度属性;科学界定案件范围,实现纠纷合理分流;设定自由退出和时效保护等期间利益保护机制;实行诉讼费用转移机制、改进诉前财产保全担保适用规则,必要时实施惩罚措施。

Break through the shackles of traditional thinking of consensus can mediate,it is expected that the compulsory pre-litigation mediation as a clear system during the legislative process.There are sufficient policy foundation and judicial practice exploration to support the establishment of this system,as it also is in line with the principle of mediation autonomy,and the restriction on the right to request adjudication is justified,which is based on the value judgment of the parties'plurality interests protection.In order to ensure that justice which is transferred can be achieved in the mediation process,it is necessary to promote procedural legality,clarify the nature of institutions;To define the scope of cases scientifically,to achieve the rational diversion of disputes;To set up mechanisms for protecting period interests,such as free withdrawal and time limit protection;Implement a mechanism for the transfer of litigation costs and improve the system of property preservation before litigation,implement punishments when necessary.