重复起诉规制问题研究

发布时间：2018-05-19 09:11

本文选题：重复起诉 + 诉讼系属　；参考：《新疆大学》2017年硕士论文

【摘要】：囿于我国司法解释相关规定之短缺,重复诉讼行为在司法实务中常有发生,往往是就某一案件尚未审结,又发生对相同纠纷予以立案之状况,从而激起对这种状况是否是重复诉讼的探讨。纵然《民事诉讼法司法解释》对重复起诉问题做出了界定,为司法实践提供了参考依据,但所涉条文过于简单化,没有与相关制度区别开来,诉讼标的和诉讼请求的关系没有做出说明、也未采用诉讼系属概念等。加之诉讼标的的同一是判断重复起诉的核心标准,但其本身也属于理论界之难题,还尚未有定论,这也是认定重复诉讼难点之原因。本文分为四个部分:在第一部分,重复起诉的概述。通过历史分析法,考察重复起诉之缘起,探究其本质内涵。然后梳理与相关概念的关系,纠正理论与实务上对其认知上的偏差,得出重复起诉仅具约束系属中这一时间段的再次诉讼行为,判决后再诉由既判力制衡。在第二部分,重复起诉的识别标准。通过分析重复起诉之一般标准和特殊标准,探讨了我国解释中重复起诉规定的不足之处。在第三部分,重复起诉规制域外之考察。透过比较评析域外相关的规定,考察先进之处,希冀为下文合理借鉴做铺陈。在第四部分,重复起诉规制的思考。首先,对我国与其相关理念及制度提出些完善建议。然后,对我国解释之中所规定作出修正及补充,考虑到诉讼标的之界定本就争议不休,加之我国在其与诉讼请求的关系上适用含混,恐难将其同作为识别要件。而将当事人同一、诉讼标的同一、争点共通作为辨识要件,合乎判断案件是否一致的内在要求。最后,在实务中为防范对后诉案件重复审理,主张设立争点整理程序和试行强制反诉制度。
[Abstract]:Due to the shortage of the relevant provisions of judicial interpretation in our country, repeated actions often occur in judicial practice, often in the situation that a case has not yet been completed and the same dispute is filed. Thus arousing the discussion of whether this situation is a duplicate lawsuit. Although the Judicial interpretation of the Civil procedure Law defines the issue of repeated prosecution and provides a reference basis for judicial practice, the provisions in question are too simplistic and do not distinguish them from the relevant systems. The relationship between the object of the lawsuit and the claim is not explained, and the concept of litigation is not adopted. In addition, the same object of litigation is the core standard of judging repeated prosecution, but it is also a difficult problem in the theoretical circle, which has not yet been concluded, which is also the reason for the difficulty of identifying repeated litigation. This article is divided into four parts: in the first part, the summary of repeated prosecution. By means of historical analysis, the origin of repeated prosecution is investigated and its essential connotation is explored. Then combing the relationship with related concepts, correcting the cognitive bias between theory and practice, it is concluded that repeated prosecution is only restricted in this period of time of relitigation behavior, after judgment by ex judicata checks and balances. In the second part, the identification criteria of repeated prosecution. By analyzing the general standards and special standards of repeated prosecution, this paper probes into the deficiencies of the provisions of repeated prosecution in our interpretation. In the third part, the investigation of repeated prosecution is carried out. Through comparative analysis of the relevant provisions of foreign countries, we hope to lay the groundwork for the following reasonable reference. In the fourth part, the reflection on the regulation of repeated prosecution. First of all, put forward some perfect suggestions to our country and its related idea and system. Then, the provisions of our interpretation are amended and supplemented, considering that the definition of the object of the lawsuit is controversial, and that the relationship between the litigation and the request is ambiguous, it is difficult to identify the object with it. Taking the same litigant, the same subject of the lawsuit and the common point as the identification elements is in line with the inherent requirement of judging whether the case is consistent or not. Finally, in order to prevent the repeated trial of the post-suit cases, the author advocates to set up the dispute arrangement procedure and try out the compulsory counterclaim system.
【学位授予单位】：新疆大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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