论对待给付诉讼

发布时间：2018-10-31 08:17

【摘要】：民事诉讼是民事实体法和民事诉讼法综合作用的“场”,这一观念已得到多数民事诉讼法学者的认同,二者存在着相互依存和相辅相成的一面。同时履行抗辩权是合同法上的概念,基于给付与对待给付之牵连性,它一般存在于双务契约。由同时履行抗辩权引起了对待给付诉讼,而对待给付诉讼则是给付诉讼的一种特别形态。《中华人民共和国合同法》(以下简称《合同法》)第66条对于同时履行抗辩权作出了规定,但是《中华人民共和国民事诉讼法》(以下简称《民事诉讼法》)及其司法解释对此却没有明确相应的规定。这一现状造成的问题是实体法与诉讼法的脱节,它使实体法的规定过度依赖于法官的自由裁量权,从而缺少法律规制。在这方面,德国、日本和我国台湾地区的相关规定则比较详细,包括在学理上的探讨。在实体法理论领域,我国大陆学者对于同时履行抗辩权的研究并不缺乏,缺乏的是诉讼法理论领域关于对待给付诉讼这一特别给付诉讼形态的深入研究。这一缺陷直接导致实践中在诉讼过程中对于同时履行抗辩权的应用没有达到应有的效果,而在诉讼阶段和执行阶段对债权人和债务人利益保护也并不平衡。同时由于诉讼法没有将足够的司法应用方面的情况信息反馈给实体法,也影响了实体法的进一步发展。这主要是源于对待给付诉讼本身所具有的独特性,对一般给付之诉和民事诉讼法理的一些看似“背离”,使得它容易给人造成不符合作为大陆法系民事诉讼程序与制度基础的辩论主义法理要求的印象,且由于存在通过其他途径,如反诉或另诉,也使得它容易被质疑有无存在的必要。但是通过深入研究对待给付诉讼,会发现它不仅没有背离辩论主义,而且具有其他解决途径所没有的优越之处,包括对于诉讼经济原则和纠纷的一次性解决理念的契合。本文共分为三个部分,第一章主要介绍对待给付诉讼的法理基础,分别从对待给付诉讼的相关概念界定、适用范围和正当化三个角度进行分析。由于学界在对待给付诉讼的应用上存在一些质疑,该章着重从反驳质疑和正面论证两个方面进行论述。第二章主要针对对待给付诉讼的程序问题进行分析,包括对待给付诉讼的性质与依据、同时履行抗辩权的效力、法官职权的体现和判决主文结构及上诉问题等。该章着重解决对待给付诉讼已经遇到和可能出现的问题,从理论结合实践的角度进行论述。第三章主要是论述我国的具体应用,基于贯通实体法与诉讼法,促进二者互动的观点,从我国合同法的理论研究现状出发,强调诉讼法的制度和程序改进,并结合实践中已经出现的典型案例,指出具体的司法应用途径。总体上来说,笔者认为,实体法与诉讼法之互动,有利于二者的共同发展,在此基础上,对待给付诉讼的司法应用具有很多益处,符合司法改革的潮流所向。
[Abstract]:Civil action is the "field" of the comprehensive function of civil substantive law and civil procedural law. This concept has been accepted by most civil procedural law scholars, and they are interdependent and complementary. At the same time, the right of defense of performance is a concept in contract law. The right to defend at the same time gives rise to a lawsuit for the payment of benefits, The treatment of compensation litigation is a special form of compensation litigation. Article 66 of the contract Law of the people's Republic of China (hereinafter referred to as "contract Law") provides for the right of defense to be performed at the same time. However, the Civil procedure Law of the people's Republic of China (hereinafter referred to as "the Civil procedure Law") and its judicial interpretation have not clearly stipulated this. The problem caused by this situation is the disconnection between the substantive law and the procedural law, which makes the provisions of the substantive law too dependent on the discretion of the judge, thus lacking of legal regulation. In this respect, the relevant regulations of Germany, Japan and Taiwan are more detailed, including theoretical discussion. In the field of substantive law, there is no lack of research on concurrent performance of the right of defense, what is lacking in the field of procedural law is the in-depth study on the litigation form of special payment in the field of procedural law. This defect directly leads to the failure of the application of concurrent performance of the right of defense in practice, and the imbalance of the protection of the interests of creditors and debtors in the stages of litigation and execution. At the same time, the law of procedure does not feedback enough information of judicial application to substantive law, which also affects the further development of substantive law. This is mainly due to the unique nature of the treatment of the procedure for the payment of benefits, which seems to deviate from the general litigation of payment and the civil procedure law. Makes it easy to give the impression that it does not meet the requirements of the argumentalist jurisprudence that underlies civil proceedings and systems in the civil law system, and because of its existence, through other means, such as counterclaims or separate actions, It also makes it easy to question the necessity of existence. However, through in-depth study of the treatment of payment litigation, it will be found that it not only does not deviate from the doctrine of debate, but also has the advantages that other solutions do not have, including the agreement between the economic principle of litigation and the concept of one-off settlement of disputes. This paper is divided into three parts. The first chapter mainly introduces the legal basis of the treatment of payment litigation, respectively from the perspective of the definition of related concepts, scope of application and legitimacy. Because there are some doubts in the application of payment litigation, this chapter focuses on two aspects: refutation challenge and positive argument. The second chapter mainly focuses on the procedural issues in the treatment of payment proceedings, including the nature and basis of the treatment of payment proceedings, the effectiveness of the right of defense, the embodiment of the judge's functions and powers, the structure of the judgment main document and the appeal issues, and so on. This chapter focuses on solving the problems that have been encountered and may appear in the treatment of payment litigation, and discusses from the angle of theory and practice. The third chapter mainly discusses the concrete application of our country, based on the point of view of linking substantive law and procedural law, promoting the interaction between them, starting from the present situation of theoretical research of contract law of our country, emphasizing the system and procedure improvement of procedural law. Combined with the typical cases that have already appeared in practice, the author points out the specific ways of judicial application. On the whole, the author believes that the interaction between substantive law and procedural law is conducive to the common development of both. On this basis, the judicial application of payment litigation has many benefits, which is in line with the trend of judicial reform.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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