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今日之法学对清末民国以来民事调解制度的近代化存在很多误解。彼时以“诉讼上之和解”指称法院调解,法院调解不是中国传统社会的民间调处在近代的延续,实为西法东渐的移植产品。《民事调解法》秉承着“杜息争端、减少讼累”的立法宗旨而制定,但法律实施效果差强人意,这部短命的立法在颁布四年后,就因其强制调解的不当设计戛然而止。取而代之的是新制定的《民事诉讼法》,新法重新建立了民事调解与民事诉讼之间关系,通过巧妙的立法技术,既维护了精英化司法的高雅身姿,又顺应了廉价且专业的司法平民化潮流的需求。
The law of today has many misunderstandings about the modernization of the civil mediation system since the end of the Qing Dynasty and the Republic of China. At that time, he referred to court mediation as “settlement of litigation.” Court mediation was not a continuation of the mediation of the Chinese traditional society in the modern era, but was actually a transplanting product of Western Fa East. The Civil Mediation Act has been formulated in accordance with the legislative purpose of “settling disputes and reducing litigation.” However, the implementation of the law was not satisfactory. This short-lived legislation screeched out improper designs for coercive mediation four years after its promulgation And stop. Instead, it is a newly enacted Civil Procedure Law. The new law re-establishes the relationship between civil mediation and civil litigation. Through clever legislative techniques, it not only maintains the elegant posture of elite justice, but also complies with the cheap and professional judiciary The trend of civilians needs.