论强制性调解对法治和公平的冲击

调解是不发达社会主导的纠纷解决制度.在社会进化过程中,调解退化成一种基层社区自治的制度和司法程序中"依附于"判决的制度.在大型有组织社会,发达的调解与人治并存;判决的权威是法治社会的标志.东方发达的调解制度是人治社会的一部分,它不是先进文化,恰恰是东方落后于西方的重要制度原因.解放后我国调解的走俏正是我国的人治社会使然.改革开放以后判决的短期走强是社会法治冲动的产物.强制性调解构成对法治基本价值的损害.既然我国已经选择了法治之路,我们就只有选择以判决为主导的纠纷解决制度,坚持调解的自治与自愿原则,并对调解进行法律规制.

On the Impact of Forcible Mediation upon the Rule of Law and Justice Enforcement

Mediation has take on a considerable forcible nature through its upsurge in recent years. The reappearance of mediation ardency originates from many reasons as bulk of litigation, ecological fragility of judicature and the political pressure of reposing suits in the transitional period, which reflects the need of the social system of rule of man. Mediation is a kind of popular and dominant dispute-resolving system in underdeveloped societies. In the course of social evolution, mediation is reduced to be an autonomy system of ground community and a judicial system clinging to adjudication. In a highly organized large society, well-developed mediation exists with rule of man, while theity of adjudication marks the society of rule of law. The flourishing system of mediation in the east composes a part of the society of rule of man, which just presents the important systematic reason why the east lags behind the west, instead of presenting an advanced culture. The popularity of mediation in our country after liberation just results from the society of rule of man. The hit of adjudication after the open policy is the outcome of the impulsion of rule of law. Mediation, as a kind of dispute-resolving system based on agreement, possesses its own unconquerable disadvantages; while the adjudication is more beneficial in the process of solution to the development of laws, the realization of justice, the guarantee of rights, the thorough settlement of disputes and the establishment of the society of rule of law. Forcible mediation does harm to the basic value of rule of law. Since our country chooses the way of rule of law, we have to rely on the adjudication-dominated system of dispute solution, insist on the mediation principle of autonomy and free will, and set down precepts to legitimate mediation.