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在我国民事诉讼中,人民法院民事调解制度最大的特点是审判活动与调解活动的结合,即“调判结合”。其也被作为一项重要的司法政策被强化。但在审判实践中,“调判结合”的办案方式还存在不足之处,表现在:程序不分,即调解程序融合于审判程序,调解贯穿于审判活动全过程;角色不分,调解法官和裁判法官合二为一,混同了“调解者”和“裁判者”的角色;审判权和处分权主次不分,淡化了当事人的自愿原则。本文提出了解决这些冲突的建议:调解员与裁判员相分立;调解程序与裁判程序相分立;完善调解制度相关立法,保障调解活动与审判活动有机统一。在完善民事案件调判结合办案方式中,应摆正以下关系:当事人申请启动调解程序,并不排斥法官的引导义务;法官主持调解,并不排斥第三人参与;依法裁判,不排斥当事人调解意见的纳入。
In our country’s civil litigation, the most prominent feature of the civil mediation system of people’s court is the combination of trial and mediation activities, that is, “the combination of mediation”. It is also being strengthened as an important judicial policy. However, in the practice of trial, there are still some shortcomings in handling the cases of “combination of punishment and punishment”, which is manifested in that: the procedure is not divided, that is, the procedure of mediation is integrated with the procedure of trial and the procedure of mediation runs through the whole process of trial; The combination of judges and magistrates in the role of “mediator” and “judge” has the same effect on judicial power and disposition right, which has played down the parties’ voluntary principles. In this paper, we put forward suggestions to solve these conflicts: the mediator and the referee are separate; the mediation procedure and the judicial procedure are separate; the relevant legislation of the mediation system is improved to ensure the organic unity of the mediation and trial activities. In the process of improving the combination and handling of cases in civil cases, the following relations should be set: The parties’ application for initiating the mediation process does not exclude the judge’s obligation to guide; the mediation by the judge does not exclude the participation of the third party; the judiciary does not exclude the mediation by the parties The inclusion of comments.