传统中国调解制度正当性探讨--由法社会学角度切入

传统中国调解制度于当事人及官府而言存在经济性,节约了当事人的经济成本与人际成本,该制度亦与传统政府规模相适应,并满足古代官员“无讼” 的价值追求.同时,传统调解制度因其调解手段的商谈性、调解依据的社会性,较之其他纠纷解决方式呈现出其特有的有效性.这种纠纷解决的经济性与有效性,作为传统中国调解制度的正当性依据,使调解制度成为中国传统社会对纠纷解决模式的理性选择.传统中国调解制度具有尊重当事人意思自治、有限的调解适用范围以及兼顾调解依据的合法性与合理性等制度优势,通过借鉴这些优势再结合当代中国现实能够完善当代调解制度.

Discussion on the Validity about Traditional Chinese Conciliation System--From the Perspective of Sociology of Law

Abstract：With regard to the parties and governments, traditional Chinese conciliation system has economic efficiency, saves theeconomic cost and interpersonal cost of the parties, fits for the scale of traditional governments and satisfies the value pursuit of“no lawsuit” of ancient officials, meanwhile, traditional Chinese conciliation system demonstrates its unique validity, comparingwith other methods to settle disputes, due to its compromising settlement of conciliation method and its socialization of conciliationbasis. This kind of economic efficiency and validity to settle disputes, as the proper basis of traditional Chinese conciliation sysbasis. This kind of economic efficiency and validity to settle disputes, as the proper basis of traditional Chinese conciliation sys-tem, makes the conciliation system become the rational choice for disputes settlement mode of Chinese traditional society, as a re-sult, contemporary conciliation system can be perfected by the systematic advantages such as limited conciliation applicationscope, the combination of validity and rationality of conciliation basis and so on and on the basis of China’s reality via these ad-vantages.