CAJ | 학술논문

调解与判决系人民法院民事审判制度的两个基本组成部分,各有其制度功能和价值,不可偏废。文章从调解实际运行入手,同时结合西方法律经济学理论,尝试为二审调解本身找到一个可以支撑、验证翔实的理论,通过在二审当中对调解结案案件的指标分析,从而得出已经调解案件的特征,以便在二审中＂识别＂具有可以调解特征的上诉案件。使此理论运用于指导法院二审调解适用工作,为调解的科学化、规范化、可操作化进行理论上的奠基。
조해여판결계인민법원민사심판제도적량개기본조성부분,각유기제도공능화개치,불가편폐。문장종조해실제운행입수,동시결합서방법률경제학이론,상시위이심조해본신조도일개가이지탱、험증상실적이론,통과재이심당중대조해결안안건적지표분석,종이득출이경조해안건적특정,이편재이심중＂식별＂구유가이조해특정적상소안건。사차이론운용우지도법원이심조해괄용공작,위조해적과학화、규범화、가조작화진행이론상적전기。
comparing with the judgment, the mediation plays an important role in dealing with the civil cases for people’s court; most of the people still know little about the basis, reason, factors and mechanism about mediation in the second trial. To analyze the contract case through empirical study, this paper lists and charts the symbols of the contract cases which is mediated in the course of second trial, demonstrates the constitution of the social cost on mediation, and concludes that the cost consumption of mediation is less than that of judicial procedure. So the second mediation judgment is more efficient. Because the second judgment or mediation system is based on reviewing of all the facts and the law application, so it is very important to the judgment in the first trial. This paper proves that the existence of causal relation instance in the success of mediation cases and a judgment result helps judge recognize the second-trial contract cases which can be prior tried by mediation way process. It also proved that mediation is optimum solution when the contract cases with some special characteristics..