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随着我国经济持续的高速发展,市场经济体制的逐步健全,社会分工愈加严密,社会关系愈加复杂。为了更加高效地定案止争、化解社会矛盾,“能动司法”应时而生。2010年,最高法院印发《关于进一步贯彻“调解优先、调判结合”工作原则的若干意见》,“大调解”的格局逐步形成。随着法院调解制度的复兴,学界对此也发表了诸多见解。事实上,法院调解制度并不符合宪法中对于法院职能的定位,如果过度拔高诉讼调解制度的价值,甚至将调解结案率作为业绩考核的指标,从而违背当事人意愿而进行调解,无疑不符合相关司法文件和司法解释的精神实质。长远来看,对于我国法治建设也有着相当大的负面作用。为此,本文在讨论现行诉讼调解制度的基础同时,进行了有关法院附设型人民调解的论述,希望达到法院审判工作和调解工作的分离,回归其宪法框架下的定位。
With the continuous rapid economic development in our country, the market economy system has been gradually improved, the social division of labor has become more stringent, and the social relations have become more complicated. In order to fix the dispute more effectively and to resolve social conflicts, “active justice” should emerge from time to time. In 2010, the Supreme Court printed and disputed a number of opinions on the principle of “mediating mediation further” and “adjudicating and adjudicating work principles.” The pattern of “grand mediation” was gradually formed. With the revival of the court mediation system, academics also made a lot of opinions. In fact, the court mediation system does not conform to the position of the court in the constitution. If the value of the mediation system is excessively elevated, and even if the mediation settlement rate is used as an index of performance appraisal and the mediation against the wishes of the parties is undoubtedly not in conformity with the relevant judicial The essence of documents and judicial interpretations. In the long run, it will also have a considerable negative effect on the rule of law in our country. Therefore, this article discusses the conciliation system of litigation at the same time, discusses the conciliation of people’s court attached to the court, hoping to achieve the separation of judicial trial and mediation, and return to the position under the constitutional framework.