法学研究

文章摘要

查明事实、分清是非原则重述

Restatement of the Principle of “Ascertaining the Facts and Discerning between Right and Wrong”

DOI：

英文关键词: court mediation;to ascertain the facts;to discern between right and wrong;trial act;judicial justice

基金项目:

作者	单位
李浩	南京师范大学法学院

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中文摘要:

“查明事实、分清是非”是民事诉讼法规定的法院调解应当遵循的原则之一，确立这一原则是为了保障司法调解的公正性。这一原则当下正受到理论和实务界的强烈质疑。我国是以法院为中心规定诉讼调解制度的，法院调解并非诉讼上的和解。调解在性质上仍然是法院的审判行为，调解与判决一样都是完成民事诉讼法所规定任务的手段，加之当事人期待接近裁判的调解结果以及调审合一的程序模式、法院调解的经验教训，这一原则的正当性和必要性具有理论和实践的依据。法院立案调解、对事实存疑案件调解所取得的成功，均不能成为否定该原则的理由。除非将法院调解置换为诉讼上和解，否则继续保留这一原则就有充分的理由。

英文摘要:

“Ascertaining the Facts & Discerning between Right and Wrong” is one of the principles guiding the court mediation in the Chinese Civil Litigation Law, which is established to guarantee the impartiality of the court mediation. But nowadays, the principle is challenged severely by the civil litigation theory and practice field and the voice to eliminate the principle is growing louder. However, the principle has profound theoretical foundations. The court mediation, which is different in nature from conciliation, is one of the main patterns of the court executing its civil judicial authority. The legislature has provided that mediation and judgment are both the patterns for the court to accomplish the tasks provided by the Civil Litigation Law. The parties’ expectation of justice, the mediation being based on judgment, mediation being part of the civil litigation procedure, and the potential compulsory nature implied in the system of the unification of mediation and judgment have provided sufficient theoretical foundations for this principle. This principle is also supported by sufficient practical foundations. Only by conforming to this principle, can the court mediation be correctly directed and the result of the mediation be impartial and acceptable. Otherwise, the court mediation will be deviated from the right way and as a result, opportunist and unprincipled mediation will prevail. The history has proved repeatedly this conclusion from the Revolutionary Base Area mediation system to the current mediation system.In litigation practice, the courts have mediated successfully certain types of cases and even those cases in which the facts cannot be ascertained, and some courts have adopted interim filing mediation. But these phenomena cannot constitute the reasons to negate or eliminate this principle. So far as the court mediation is not deconstructed and rebuilt into conciliation in civil litigation, the principle should still be insisted on in order to guarantee the impartiality of the court mediation.

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