大调解与我国基层法院的功能——以湖南两个县的土地纠纷调查为例

乡土社会的纠纷解决一向以提倡基层调解为主,诉之法院,又以另一种形式的调解替代,因此,我国当下"大调解"的核心其实在于法院调解。但是,我国基层法院在现有的国家权力架构中,在无法保持独立性的实际压力下,面对正式法律与民间习惯的矛盾,无法完成他们被期待的功能。多重角色的压力使他们不得不强调调解,以调解的方式来回避刚性矛盾,以保持合法性。实际上,法院如果无法解决规则之治的问题,它就无法真正实现纠纷解决,而仅仅是纠纷解决道路上的一个驿站。

Comprehensive Mediation and Function Fulfillment of Trial Court in China——Based on the Land Disputes Inverstigaion in Two Counties of Hunan

The disputes resolution of Chinese rural society basically revolved around mediation.Even though people tried to apply their disputes for trial court,the court would suggest resolving it through court-performed mediation,which gives us an impression court-performed mediation is the core of comprehensive mediation.However,in the contemporary power structure the trial court cannot keep independent from administration government,and it will not fulfill its function which arranged by the mandatory law.The trial court had to act different roles in the power structure,which engaged it in pressure.Therefore,the trial court had to turn recourse to mediation to avoid the conflicts and keep legitimacy.Provided the trial court could not find the accurate rule to deal with the difficulty,it is not easy to resolve the rural land disputes for the trial court.