从理想到现实——非诉讼纠纷解决机制的正当性探析法律专业论文.docxVIP

目 录 引 言 ································································································ 1 第一章 理想的竞合 需求与选择 ····························································· 4 一、孕育：本土文化的传承······························································· 4 （一）和合文化的自然传承························································· 4 （二）乡土社会的必然选择························································· 5 二、催生：利益诉求的多元······························································· 6 （一）个体：利益多元和情感需求 ··············································· 7 （二）社会：转型期的稳定与发展 ··············································· 8 （三）三种救济模式的时代转换 ·················································· 9 三、嬗变：价值体现的多样····························································· 10 （一）法律并非唯一理想的人类生活方式 ···································· 10 （二）正式法律之外存在着多种社会规范 ···································· 11 四、涅磐：成本和效益的选择·························································· 12 （一）国家层面成本和效益的分析 ············································· 13 （二）纠纷当事人：诉与非诉的选择 ·········································· 14 第二章 现实的无奈 挑战与冲击 ··························································· 16 一、非诉讼纠纷解决机制的域外考察 ················································ 16 （一）美国：法院附设 ADR 及《非诉讼纠纷解决机制法》 16 （二）日本：调停制度及“圆满解决”的追求 ······························ 19 二、ADR 在中国的现实考究 21 （一）权力的介入··································································· 21 （二）利益的驱动··································································· 23 （三）舆论的误导··································································· 25 （四）非理性行为··································································· 27 第三章 整合与探索 从理想到现实 ························································ 30 一、尺有所短：立法的缺憾与完善···················································· 30 （一）能与不能：明确非诉讼方式解决的纠纷范围 ························ 30 （二）规范非诉讼方式解决纠纷的程序和当事人的权利义务 ············ 31 （三）非诉讼方式解决纠纷结果的效力确认和法律监督 ·················· 32 （四）探索中立第三方的准入和考核制度 ····································