我國人民調(diào)解制度變遷研究：1978-2015
發(fā)布時間：2018-08-31 15:56
【摘要】：人民調(diào)解是一項極具中國特色又蘊涵深厚中華民族傳統(tǒng)文化的民間性糾紛解決機制,長期以來在預(yù)防和化解糾紛方面發(fā)揮著重要的作用,被譽為維護(hù)社會穩(wěn)定的“第一道防線”。然而,在我國從傳統(tǒng)向現(xiàn)代演進(jìn)的歷史洪流中,根植于傳統(tǒng)卻又作為共產(chǎn)黨人一項新創(chuàng)造的人民調(diào)解制度沿著歷史的軌跡發(fā)生了怎樣的改變,我們?nèi)绾卫斫馑倪@些改變,又如何解釋它變遷背后隱藏的邏輯等問題,在當(dāng)前的多元糾紛解決體系中它又將何去何從?正帶著這樣的問題意識,本文截取了1978-2015期間的人民調(diào)解制度,以其歷史演變的歷程作為考察對象,試圖從法律與經(jīng)濟(jì)學(xué)結(jié)合的視角來闡釋和理解其在從傳統(tǒng)向現(xiàn)代轉(zhuǎn)變的歷史進(jìn)程中發(fā)生的種種改變,既力圖提升調(diào)解變遷的理論,深刻地解釋其制度變遷背后的邏輯,又力圖回應(yīng)現(xiàn)實,為調(diào)解制度的改進(jìn)和完善提供一種不同于傳統(tǒng)法學(xué)研究意義上的應(yīng)對思路。本文共分六章。第一章作為引子,對研究背景、意義、對象、方法和理論框架進(jìn)行交代,并對既有文獻(xiàn)和理論進(jìn)行梳理。二到四章是對1978-2015年人民調(diào)解制度的變遷軌跡根據(jù)特定的拐點分為復(fù)蘇、低迷、復(fù)興三個發(fā)展階段,以道格拉斯.諾斯制度變遷理論的三大基石解讀人民調(diào)解制度變遷的背景,通過設(shè)定特定的變量對不同階段人民調(diào)解制度的變遷現(xiàn)狀與運行效果進(jìn)行實證分析,具體而言:第二章側(cè)重分析復(fù)蘇的人民調(diào)解制度(1978-1992)。在農(nóng)村土地承包以及城市國有企業(yè)產(chǎn)權(quán)改革背景分析的基礎(chǔ)上,分析了人民調(diào)解制度得以復(fù)蘇的軌跡以及制度運行的實效,得出在此階段人民調(diào)解制度的解紛功能出現(xiàn)弱化傾向的結(jié)論,從制度供給與需求的角度解釋人民調(diào)解制度解紛功能出現(xiàn)弱化傾向的原因。闡明了政府對人民調(diào)解制度進(jìn)行設(shè)計安排的因素考量,并補充以人民調(diào)解的微觀場景,通過典型案例說明的人民調(diào)解制度的糾紛當(dāng)事人選擇調(diào)解模式解決糾紛的互動博弈過程,在此基礎(chǔ)上論證本階段人民調(diào)解制度變遷成本。第三章主要解讀低迷時期(1993-2002年)的人民調(diào)解制度。隨著市場經(jīng)濟(jì)的不斷發(fā)展與產(chǎn)權(quán)改革進(jìn)程的逐步推進(jìn),中國社會矛盾糾紛的主體與類型呈現(xiàn)新的變化與趨勢,國家大力推進(jìn)司法體制改革,法院調(diào)解逐漸被邊緣化,人民調(diào)解也陷入低谷之中。本章首先對此時期人民調(diào)解制度變遷的背景和特點進(jìn)行深入分析,歸納總結(jié)此一階段人民調(diào)解制度的運行效果,進(jìn)而對其陷入低迷期的制度原因進(jìn)行多維度的解讀與闡釋,主要包括制度變遷的新解讀、“強訴訟、弱調(diào)解”糾紛解決體系的形成、人民調(diào)解制度的“鎖定”效應(yīng)、加以制度現(xiàn)狀的成本測量等。第四章重點分析(2003-2015年)期間復(fù)興的人民調(diào)解制度。這一時期,重構(gòu)、復(fù)興法院調(diào)解的熱潮為實務(wù)界所首先推動。受其影響,人民調(diào)解制度在政府與社會組織的雙重助力下,迎來了全面發(fā)展的又一個春天。本部分內(nèi)容首先梳理了新世紀(jì)以來人民調(diào)解制度的發(fā)展現(xiàn)狀與運行效果,然后重點闡釋了人民調(diào)解與大調(diào)解、三調(diào)聯(lián)動機制,人民調(diào)解之于訴訟、非訴訟糾紛解決機制,人民調(diào)解與多元糾紛解決機制之間的關(guān)系;最后對人民調(diào)解制度的均衡及演化進(jìn)行了經(jīng)濟(jì)學(xué)分析,重點探討了人民調(diào)解制度變遷過程中各種利益集團(tuán)間的博弈問題。第五章是對上文的總結(jié)、拓展和深化,力圖從整體上把握人民調(diào)解制度變遷的特點、邏輯以及未來的發(fā)展趨勢�？傮w而言,法律制度是理性構(gòu)建的產(chǎn)物,是利益的妥協(xié)與平衡。我國人民調(diào)解制度變遷經(jīng)歷了從“均衡”到“非均衡”再到“均衡”的過程,是一個動態(tài)發(fā)展、循環(huán)反復(fù)、否定之否定的過程,其具體特點表現(xiàn)為從“單一供給”到“多元供給”的轉(zhuǎn)變、由“群眾工作”與“說服教育工作”向職業(yè)化轉(zhuǎn)變、是一個不斷的規(guī)范化和制度化的過程。第六章首先從制度供求層面、成本收益角度、路徑依賴、相關(guān)群體間的利益沖突、意識形態(tài)等方面分析人民調(diào)解制度的變遷阻力;然后在此基礎(chǔ)上探討人民調(diào)解的制度重構(gòu)問題,本文認(rèn)為短期應(yīng)當(dāng)要從制度供給、需求等方面走出目前的制度困境,長期應(yīng)當(dāng)讓人民調(diào)解制度回歸自治性群眾性的本質(zhì)。值得一提的是,本文的一大特色在于運用法律與經(jīng)濟(jì)學(xué)相結(jié)合的分析方法,尤其是“制度變遷”理論來闡釋1978-2015年間人民調(diào)解制度演進(jìn)過程,并借助制度成本和收益、制度需求和供給、制度均衡等相關(guān)概念和理論對變遷邏輯進(jìn)行解釋和說明。此外,本文還試圖從制度供給、制度成本、路徑依賴、利益沖突、意識形態(tài)等切入點進(jìn)行思考,以期提供一種有針對性、具體可行的人民調(diào)解機制完善方案。
[Abstract]:People's mediation is a non-governmental dispute settlement mechanism with Chinese characteristics and profound Chinese traditional culture. It has played an important role in preventing and resolving disputes for a long time and has been praised as the "first line of defense" to maintain social stability. However, in the historical torrent of China's evolution from tradition to modern times, it is rooted in transmission. What changes have taken place in the people's mediation system created by the Communist Party as a new one along the historical track, how do we understand these changes, how do we explain the logic behind the changes, and what will it do in the current multi-dispute resolution system? Taking the people's mediation system from 1978 to 2015 as an example, this paper tries to explain and understand its changes in the historical process of transition from tradition to modernity from the perspective of the combination of law and economics, aiming at promoting the theory of mediation change and profoundly explaining the background of its institutional change. The first chapter, as an introduction, explains the research background, significance, objects, methods and theoretical framework, and combs the existing literature and theories. The second to fourth chapters are 1978-2015. According to the specific inflection point, the change track of the people's mediation system was divided into three stages: recovery, depression and revival. The background of the change of the people's mediation system was interpreted from the three cornerstones of Douglas North's theory of institutional change, and the current situation and operation effect of the change of the people's mediation system in different stages were empirically studied by setting specific variables. In particular, the second chapter focuses on the analysis of the revival of the people's mediation system (1978-1992). On the basis of the analysis of the rural land contract and the property rights reform background of urban state-owned enterprises, this paper analyzes the track of the revival of the people's mediation system and the actual effect of the system operation, and draws the conclusion that the function of the people's mediation system is weak at this stage. The conclusion of the tendency is to explain the reasons for the weakening of the function of the people's mediation system from the perspective of the supply and demand of the system.The paper expounds the factors that the government considers in designing and arranging the people's mediation system,and supplements the micro-scene of the people's mediation system,and illustrates the parties to the dispute of the people's mediation system choose mediation through typical cases. The third chapter mainly interprets the people's mediation system in the downturn period (1993-2002). With the continuous development of the market economy and the gradual advancement of the property rights reform process, the main body and types of social contradictions and disputes in China present a new era. With the change and trend, the state vigorously promotes the reform of judicial system, court mediation is gradually marginalized, and people's mediation is also in a low ebb. Firstly, this chapter analyzes the background and characteristics of the change of people's mediation system in this period, summarizes the operation effect of the people's mediation system at this stage, and then puts it into a downturn. The reasons are interpreted and explained in many dimensions, including the new interpretation of the institutional changes, the formation of the dispute resolution system of "strong litigation, weak mediation", the "lock-in" effect of the people's mediation system, and the cost measurement of the current institutional situation. Under the influence of the upsurge of court mediation, the people's mediation system has ushered in another spring of all-round development with the dual help of the government and social organizations. Finally, the paper makes an economic analysis of the balance and evolution of the people's mediation system, focusing on the game between various interest groups in the process of the change of the people's mediation system. In general, the legal system is the product of rational construction and the compromise and balance of interests. The process is a process of dynamic development, repetition and negation. Its specific characteristics are as follows: from "single supply" to "multiple supply", from "mass work" and "persuasion education" to professionalization. It is a process of constant standardization and institutionalization. From the perspective of cost-benefit, path dependence, conflict of interest among related groups, ideology and other aspects, this paper analyzes the resistance to the change of the people's mediation system, and then discusses the reconstruction of the people's mediation system on this basis. This paper argues that in the short run, we should get out of the current system dilemma from the aspects of system supply and demand, and let the people mediate in the long run. It is worth mentioning that one of the characteristics of this paper is to explain the evolution of the people's mediation system from 1978 to 2015 by using the method of combining law with economics, especially the theory of "institutional change", and to make use of the cost and benefit of the system, the demand and supply of the system, and the balance of the system. In addition, this paper also attempts to consider the system supply, system cost, path dependence, conflict of interest, ideology and other entry points, in order to provide a targeted, concrete and feasible people's mediation mechanism to improve the program.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2016
【分類號】：D925.14
，
本文編號：2215467
[Abstract]:People's mediation is a non-governmental dispute settlement mechanism with Chinese characteristics and profound Chinese traditional culture. It has played an important role in preventing and resolving disputes for a long time and has been praised as the "first line of defense" to maintain social stability. However, in the historical torrent of China's evolution from tradition to modern times, it is rooted in transmission. What changes have taken place in the people's mediation system created by the Communist Party as a new one along the historical track, how do we understand these changes, how do we explain the logic behind the changes, and what will it do in the current multi-dispute resolution system? Taking the people's mediation system from 1978 to 2015 as an example, this paper tries to explain and understand its changes in the historical process of transition from tradition to modernity from the perspective of the combination of law and economics, aiming at promoting the theory of mediation change and profoundly explaining the background of its institutional change. The first chapter, as an introduction, explains the research background, significance, objects, methods and theoretical framework, and combs the existing literature and theories. The second to fourth chapters are 1978-2015. According to the specific inflection point, the change track of the people's mediation system was divided into three stages: recovery, depression and revival. The background of the change of the people's mediation system was interpreted from the three cornerstones of Douglas North's theory of institutional change, and the current situation and operation effect of the change of the people's mediation system in different stages were empirically studied by setting specific variables. In particular, the second chapter focuses on the analysis of the revival of the people's mediation system (1978-1992). On the basis of the analysis of the rural land contract and the property rights reform background of urban state-owned enterprises, this paper analyzes the track of the revival of the people's mediation system and the actual effect of the system operation, and draws the conclusion that the function of the people's mediation system is weak at this stage. The conclusion of the tendency is to explain the reasons for the weakening of the function of the people's mediation system from the perspective of the supply and demand of the system.The paper expounds the factors that the government considers in designing and arranging the people's mediation system,and supplements the micro-scene of the people's mediation system,and illustrates the parties to the dispute of the people's mediation system choose mediation through typical cases. The third chapter mainly interprets the people's mediation system in the downturn period (1993-2002). With the continuous development of the market economy and the gradual advancement of the property rights reform process, the main body and types of social contradictions and disputes in China present a new era. With the change and trend, the state vigorously promotes the reform of judicial system, court mediation is gradually marginalized, and people's mediation is also in a low ebb. Firstly, this chapter analyzes the background and characteristics of the change of people's mediation system in this period, summarizes the operation effect of the people's mediation system at this stage, and then puts it into a downturn. The reasons are interpreted and explained in many dimensions, including the new interpretation of the institutional changes, the formation of the dispute resolution system of "strong litigation, weak mediation", the "lock-in" effect of the people's mediation system, and the cost measurement of the current institutional situation. Under the influence of the upsurge of court mediation, the people's mediation system has ushered in another spring of all-round development with the dual help of the government and social organizations. Finally, the paper makes an economic analysis of the balance and evolution of the people's mediation system, focusing on the game between various interest groups in the process of the change of the people's mediation system. In general, the legal system is the product of rational construction and the compromise and balance of interests. The process is a process of dynamic development, repetition and negation. Its specific characteristics are as follows: from "single supply" to "multiple supply", from "mass work" and "persuasion education" to professionalization. It is a process of constant standardization and institutionalization. From the perspective of cost-benefit, path dependence, conflict of interest among related groups, ideology and other aspects, this paper analyzes the resistance to the change of the people's mediation system, and then discusses the reconstruction of the people's mediation system on this basis. This paper argues that in the short run, we should get out of the current system dilemma from the aspects of system supply and demand, and let the people mediate in the long run. It is worth mentioning that one of the characteristics of this paper is to explain the evolution of the people's mediation system from 1978 to 2015 by using the method of combining law with economics, especially the theory of "institutional change", and to make use of the cost and benefit of the system, the demand and supply of the system, and the balance of the system. In addition, this paper also attempts to consider the system supply, system cost, path dependence, conflict of interest, ideology and other entry points, in order to provide a targeted, concrete and feasible people's mediation mechanism to improve the program.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2016
【分類號】：D925.14
，
本文編號：2215467
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