清代民事诉讼制度的特点及现代借鉴意义

清代作为中国封建社会的最后一个王朝,其法律制度发展到了相当完备的地步,清代民事诉讼制度主要有六个特点。清代民事诉讼制度对今天借鉴意义主要有三点：对调解的灵活运用;对习惯法的灵活运用;判决注重说理性。     

Turning down the heat: Influences on conflict management in enduring rivalries

Enduring rivalries represent the most difficult challenges for policy makers seeking to promote international peace and security. Once in place, enduring rivalries account for a disproportionate number of crises, militarized disputes, as well as wars, and include conflicts that are more likely to escalate than those falling in other conflict contexts. Unfortunately, we know very little about conflict management in enduring rivalries from either a theoretical or policy perspective. This study seeks to account for why some rivalries are successfully managed while others persist at high and unabated levels of conflict In addressing these concerns, we explore 35 enduring rivalries over the period 1945–1992. We find that although enduring rivalries are quite resistant to influences that produce changes in their dynamics, both endogenous and contextual influences can exercise a significant impact upon the prospects for conflict management between enduring rivals.     

Peace from the Inside: Exploring the Role of the Insider-Partial Mediator

Previous quantitative research on mediation in intrastate and interstate conflicts has highlighted the role of external mediators. This study represents the first effort to systematically explore the role of internal—insider-partial—mediators. We suggest that the insider-partial mediators bring important indigenous resources to a peace process and that they can complement external mediators by mitigating the bargaining problem of information failure. Exploring new data on the occurrence and effect of mediation in unarmed insurrections from 1970–2006, we find that the insider-partial mediators significantly increase the likelihood of negotiated agreements. This applies even after controlling for so-called selection effects, where external mediators are selected, or self-selected, into the most difficult conflict situations, whereas insider-partial mediators are utilized in conflict situations that are less severe; and where insider-partial mediators have a substantially higher frequency of activity in unarmed as compared to armed insurrections. We therefore conclude that the insider-partial mediators play an important and positive role in peacemaking that merits further exploration.     

On the Media Effects of Immigration and Refugee Board Hearings via Videoconference

Canada's Immigration and Refugee Board conducts some of itsrefugee hearings via videoconferencing. As part of a reviewof the fairness of this practice, a theoretical approach andreview of the empirical literature was commissioned. Particularlyunder ‘high stakes’ conditions, it was found thatvideoconferencing reduces mutual trust and understanding, exacerbatescultural differences in non-verbal communication, and increasesthe propensity to lie while decreasing the ability to detectfalsehoods. Further, the inherent power imbalance between thetribunal and the claimant is widened as the tribunal membersbecome acclimatized to the technology. In general, the differencein sensory perception of a mediating technology creates cognitivedifferences between mediated and non-mediated environments.Further, sensory perception that feeds narrative constructionvaries by culture. The process of conveying and understandingmeaning across cultures is sufficiently difficult; adding thecomplexity of videoconference mediation introduces the possibilityof inconsistency, inaccuracy, and altered judgement.     

Conflict Resolution: Lessons from the Dayton Peace Process

The Bosnian War (1992–1995) was one of the most brutal conflicts in Europe since the end of World War II. Thirty‐four cease‐fires failed to produce peace in Bosnia and Herzegovina until the late American diplomat, Richard Holbrooke, brokered one that set the stage for a series of negotiations—starting in the Balkans and ending in Dayton, Ohio. The Dayton peace process finally terminated the Bosnian War. The interplay of military intervention by the North Atlantic Treaty Organization and diplomacy by the United States was remarkable. This article highlights thirteen conflict resolution lessons or “Holbrookeisms” that can be learned from the Dayton peace process. Some aspects of Holbrooke's approach toward the peace process helped him to successfully mediate an end to the Bosnian War, while others contributed toward some of the existing cleavages in today's Bosnian society.     

Coordinating Transitional Justice

Conflict resolution professionals sometimes differ from human rights professionals about the best approaches to transitional justice, particularly with regard to the scope, conditions, and timing of possible amnesties from prosecution for perpetrators of war crimes and human rights abuses. When human rights and conflict resolution professionals work at cross‐purposes, they may work less effectively to end conflict, abuses, and crimes, and to implement peace accords. A consensus among conflict resolution and human rights scholars about which legal norms should govern post‐conflict amnesty programs appears to be developing. Against this emerging legal framework, human rights and conflict resolution professionals should, I argue, develop processes for working together more effectively in the design and implementation of context‐sensitive approaches to transitional justice. These process principles should address the entire conflict period, from escalation through resolution to post‐conflict reconstruction. In this article, I describe a tentative, general framework for coordinating the development of transitional justice programs. This proposed framework is intended to stimulate and guide discussion of these issues among conflict resolution and human rights professionals and scholars.     

强制调解理论探析

自愿原则是调解的基本原则,但是司法实践中强制性因素的介入,促使了一种具有特色的调解制度——强制调解的兴起。在提高诉讼效率、节约诉讼资源观念的指引下,强制调解在司法领域备受推崇。但是,有关强制调解是否应当被采用的争议还是层出不穷。要搞清楚这一问题,有必要对强制调解进行法理分析。     

刑事附带民事诉讼案件调解方法的思考

在审理刑事附带民事诉讼案件时,坚持在严惩罪犯的同时,充分利用法律赋予的调解职能,围绕刑事诉讼这一主线,克服就案办案思想,积极调解,使刑事责任和民事责任相容相济,通过调解使二者在法律与情理上得到互补,从而达到被告人服判、被害人息诉的良好效果。从近年来的司法实践看,初犯、过失犯、未成年犯等刑事案件和邻里纠纷引发的刑事案件也不在少数,通常像这类犯罪,被告人和被害人没有太深的过节,被告人愿意通过赔偿希望得到从宽处理,而被害人也愿意得到经济上的赔偿,谅解     

行政调解概念之实在法分析

清楚地界定行政调解的内涵和外延,是科学构建行政调解制度的基础,而行政调解构造性的矛盾使得难以为其精确地定义。因此,应该放弃在现行行政行为体系中为行政调解寻求定位,着重其本质功能,采用最狭义的行政调解概念,突出政府调解职能在解决民事纠纷中的独立价值。