國際商事調(diào)解保障機制研究
發(fā)布時間：2019-01-23 16:54
【摘要】：隨著國際商事交流的不斷發(fā)展,其爭議的產(chǎn)生也隨之增多,依靠傳統(tǒng)的訴訟與仲裁解決爭議,面臨著繁瑣的程序規(guī)定和不確定的執(zhí)行力。同時,商事爭議需要在一個迅速的、保密的環(huán)境下解決,調(diào)解制度由其簡化程序、保密性、自主性的特征,恰恰迎合了商事爭議解決的需要,迅速的成為ADR中最具代表和應(yīng)用最廣的爭端解決機制。然而,作為一項年輕的制度,和解協(xié)議的執(zhí)行一直受到挑戰(zhàn)。本文試圖通過對和解協(xié)議的保障機制研究,具體分析了當前存在的調(diào)解員、調(diào)解程序、調(diào)仲結(jié)合制度以及司法確認制度,提出一些可以改進的地方,以資參考。 關(guān)于國際商事調(diào)解的文章很多,尤其是針對和解協(xié)議效力的探討,很多學者提出了具有建設(shè)性的意見。然而,論述的文章大多在和解協(xié)議的性質(zhì)、仲裁調(diào)解和訴調(diào)銜接上,希望通過加強和解協(xié)議的效力,甚至是賦予強制執(zhí)行力來提高執(zhí)行力。本文試圖突破傳統(tǒng)的思維局限,不只在強制執(zhí)行上做文章,同時也關(guān)注和解協(xié)議的達成。如果總是在執(zhí)行上出現(xiàn)問題,那么該協(xié)議至少是被當事人所排斥的。被當事人排斥的協(xié)議很難說基于當事人自愿達成。所以應(yīng)當將協(xié)議的達成過程與協(xié)議的執(zhí)行力并重,才能充分發(fā)揮調(diào)解制度的作用。 隨著國際商事調(diào)解在解決國際民商事爭議中的地位不斷提升,本文通過簡要介紹國際商事調(diào)解的興起以及發(fā)展,對商事調(diào)解在解決民商事爭議當中的地位做出判斷。商事調(diào)解作為一個年輕的制度,雖然散發(fā)出蓬勃的朝氣,但是也要防止因程序嚴格化和效力強制化造成的衰落。 同時,本文對國際商事調(diào)解保障機制做了簡要介紹。商事調(diào)解保障機制既包含了協(xié)議達成保障也包含了和解協(xié)議執(zhí)行保障。本文認為,和解協(xié)議的達成與執(zhí)行同等重要,維護制度的穩(wěn)定和合理創(chuàng)新同樣重要。目前存在的制度基本上能夠滿足對商事調(diào)解的保障。但是,商事調(diào)解在程序立法和司法確認上仍有需要完善的地方。 國際商事調(diào)解保障機制的運行作為保障機制的核心部分,本文著重分析了商事調(diào)解中的調(diào)解員制度、調(diào)解程序、效力確認、調(diào)仲結(jié)合、訴調(diào)對接制度的運行情況,得出目前商事調(diào)解的運行對商事調(diào)解的保障作用,并對制度運行過程中產(chǎn)生的問題提供一些可以解決的措施。 調(diào)解制度在我國有著悠久的歷史,然而商事調(diào)解在我國確實一個年輕的制度。特別是針對調(diào)解程序的立法,還顯得尤為不足。本文詳細探討了當前我國有關(guān)國際商事調(diào)解的實踐,并對立法模式和具體立法問題上提出了一些建議和意見,以資我國在進行國際商事調(diào)解相關(guān)立法時予以參考。
[Abstract]:With the continuous development of international commercial exchanges, the emergence of disputes also increased, relying on traditional litigation and arbitration to resolve disputes, faced with cumbersome procedural provisions and uncertain executive power. At the same time, commercial disputes need to be resolved in a rapid and confidential environment. The mediation system is characterized by its simplified procedures, confidentiality and autonomy, which meets the needs of commercial dispute resolution. It has rapidly become the most representative and widely used dispute settlement mechanism in ADR. However, as a young system, the implementation of the settlement agreement has been challenged. This paper attempts to analyze the existing mediators, mediation procedures, mediation system and judicial confirmation system through the research of the safeguard mechanism of the settlement agreement, and puts forward some improvements for reference. There are many articles about international commercial mediation, especially for the discussion of the validity of settlement agreement, many scholars have put forward constructive suggestions. However, most of the articles discussed in the nature of the settlement agreement, arbitration mediation and litigation link, hoping to strengthen the effectiveness of the settlement agreement, or even to give enforcement to improve the execution. This paper attempts to break through the traditional thinking limitations, not only on enforcement, but also on the settlement agreement. If there is always a problem with enforcement, the agreement is at least rejected by the parties. It is hard to say that an agreement that is excluded by the parties is based on the voluntary agreement of the parties. Therefore, we should pay equal attention to the process of reaching the agreement and the execution of the agreement, in order to give full play to the role of mediation system. With the increasing status of international commercial mediation in the settlement of international civil and commercial disputes, this paper briefly introduces the rise and development of international commercial mediation, and makes a judgment on the position of commercial mediation in the settlement of civil and commercial disputes. Commercial mediation as a young system, although exuberant vitality, but also to prevent due to procedural strictness and force of decline. At the same time, this article makes a brief introduction to the safeguard mechanism of international commercial mediation. The guarantee mechanism of commercial mediation includes not only the agreement to reach the guarantee but also the settlement agreement to ensure the implementation of the agreement. This paper holds that the settlement agreement is as important as the implementation, and the stability and reasonable innovation of the system are equally important. The existing system can basically satisfy the protection of commercial mediation. However, commercial mediation still needs to be perfected in procedural legislation and judicial confirmation. The operation of the safeguard mechanism of international commercial mediation is the core part of the safeguard mechanism. This paper focuses on the analysis of the operation of the system of mediators, mediation procedures, validity confirmation, combination of mediation, litigation and docking in commercial mediation. The author draws a conclusion that the operation of commercial mediation has a protective effect on the commercial mediation and provides some measures to solve the problems arising in the course of the operation of the system. The mediation system has a long history in China, but commercial mediation is indeed a young system in our country. Especially for the mediation procedure legislation, but also appears to be particularly inadequate. This paper discusses in detail the practice of international commercial mediation in China at present, and puts forward some suggestions and opinions on the legislative model and specific legislative issues in order to make reference to the relevant legislation of international commercial mediation in our country.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D997.4
本文編號：2414019
[Abstract]:With the continuous development of international commercial exchanges, the emergence of disputes also increased, relying on traditional litigation and arbitration to resolve disputes, faced with cumbersome procedural provisions and uncertain executive power. At the same time, commercial disputes need to be resolved in a rapid and confidential environment. The mediation system is characterized by its simplified procedures, confidentiality and autonomy, which meets the needs of commercial dispute resolution. It has rapidly become the most representative and widely used dispute settlement mechanism in ADR. However, as a young system, the implementation of the settlement agreement has been challenged. This paper attempts to analyze the existing mediators, mediation procedures, mediation system and judicial confirmation system through the research of the safeguard mechanism of the settlement agreement, and puts forward some improvements for reference. There are many articles about international commercial mediation, especially for the discussion of the validity of settlement agreement, many scholars have put forward constructive suggestions. However, most of the articles discussed in the nature of the settlement agreement, arbitration mediation and litigation link, hoping to strengthen the effectiveness of the settlement agreement, or even to give enforcement to improve the execution. This paper attempts to break through the traditional thinking limitations, not only on enforcement, but also on the settlement agreement. If there is always a problem with enforcement, the agreement is at least rejected by the parties. It is hard to say that an agreement that is excluded by the parties is based on the voluntary agreement of the parties. Therefore, we should pay equal attention to the process of reaching the agreement and the execution of the agreement, in order to give full play to the role of mediation system. With the increasing status of international commercial mediation in the settlement of international civil and commercial disputes, this paper briefly introduces the rise and development of international commercial mediation, and makes a judgment on the position of commercial mediation in the settlement of civil and commercial disputes. Commercial mediation as a young system, although exuberant vitality, but also to prevent due to procedural strictness and force of decline. At the same time, this article makes a brief introduction to the safeguard mechanism of international commercial mediation. The guarantee mechanism of commercial mediation includes not only the agreement to reach the guarantee but also the settlement agreement to ensure the implementation of the agreement. This paper holds that the settlement agreement is as important as the implementation, and the stability and reasonable innovation of the system are equally important. The existing system can basically satisfy the protection of commercial mediation. However, commercial mediation still needs to be perfected in procedural legislation and judicial confirmation. The operation of the safeguard mechanism of international commercial mediation is the core part of the safeguard mechanism. This paper focuses on the analysis of the operation of the system of mediators, mediation procedures, validity confirmation, combination of mediation, litigation and docking in commercial mediation. The author draws a conclusion that the operation of commercial mediation has a protective effect on the commercial mediation and provides some measures to solve the problems arising in the course of the operation of the system. The mediation system has a long history in China, but commercial mediation is indeed a young system in our country. Especially for the mediation procedure legislation, but also appears to be particularly inadequate. This paper discusses in detail the practice of international commercial mediation in China at present, and puts forward some suggestions and opinions on the legislative model and specific legislative issues in order to make reference to the relevant legislation of international commercial mediation in our country.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D997.4
【參考文獻】
相關(guān)期刊論文 前10條
1 劉艷芳;;我國古代調(diào)解制度解析[J];安徽大學學報;2006年02期
2 劉顯鵬;;合意為本:人民調(diào)解協(xié)議司法確認之應(yīng)然基調(diào)[J];法學評論;2013年02期
3 郭志遠;;調(diào)解協(xié)議司法確認制度實施問題研究[J];安徽大學法律評論;2012年02期
4 張玲;;試析司法確認對克服人民調(diào)解協(xié)議效力局限性的不足[J];傳承;2011年02期
5 劉輝;姜昕;;訴調(diào)對接中的司法確認制度解析[J];河南教育學院學報(哲學社會科學版);2010年06期
6 孫明娟;;探索商事糾紛的司法調(diào)解制度[J];理論觀察;2011年04期
7 岑雅衍，，金一波;ADR的法律探析[J];寧波大學學報(人文科學版);1995年03期
8 李德恩;;現(xiàn)代調(diào)解員角色:轉(zhuǎn)換與規(guī)制[J];法學論壇;2010年06期
9 范愉;調(diào)解的重構(gòu)(上)——以法院調(diào)解的改革為重點[J];法制與社會發(fā)展;2004年02期
10 王鋼;;論文化差異在國際商事調(diào)解中的表現(xiàn)及影響[J];西北大學學報(哲學社會科學版);2009年04期
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