论清代官批民调及其对现行委托调解的启示

清代民事调解有一种半官半民的特殊形式,即官批民调。其表现类型多样,具有固定流程,是清代社会治理结构、司法体制特点等多种因素作用的产物。黄宗智先生将清代这种半官半民的中间地带称之为纠纷解决的"第三领域"。现行委托调解也具有半官半民的性质,与官批民调同属"第三领域"的民事调解,但二者在产生动因及内容构造上存在明显差异。不过,就适用范围界定和调解人甄选而言,官批民调能为委托调解提供有益启示。

Government-Approved Civil Mediation in the Qing Dynasty and Its Enlightenment with Regard to Current Court-entrusted Mediation

Mediation of civil cases in the Qing Dynasty born a half-official and half-civilian color,i.e.government-approved civil mediation,which,having a variety of forms and fixed procedures,.was the product of interaction of many factors such as social governance structure and judicial system.Mr.Huang Zong-zhi addresses this quasi-official and quasi-civilian intermediate zone as the "third-realm" of civil dispute resolution.While current court-entrusted mediation is in some way of half-official and half-civilian character and just like government-approved civil mediation falls within the ambit of the "third-realm" of civil dispute resolution,it differs greatly with the latter in motivation of origination and structural contents.However,as to the scope of application and selection of mediators,government-approved civil mediation might in some way afford enlightenment to court-entrusted mediation.