民事诉讼中的重复起诉问题研究

发布时间：2018-06-23 16:48

本文选题：重复起诉 + 禁止重复起诉　；参考：《华侨大学》2017年硕士论文

【摘要】：重复起诉是一种饱受诟病的诉讼现象,我国长期以一事不再理原则予以规制重复起诉,直至2015年最高人民法院发布的《民诉法解释》第二百四十七条明确规定禁止重复起诉,禁止重复起诉开始有法可依,禁止重复起诉理念开始不断渗透到理论和司法实践。《民诉法解释》第二百四十七条规定禁止的重复起诉,包括“诉讼过程中”和“裁判生效后”的重复起诉情形,并未遵循大陆法系国家的一般做法(禁止重复起诉只包含诉讼系属,对于“裁判生效后”的重复起诉情形纳入既判力范畴),而是遵循古罗马时期一事不再理的双重内涵,将禁止重复起诉与一事不再理相等同。由于,我国关于诉的理论尚处于“百花齐放”阶段,重复起诉规制的立法方面、学者研究方面、司法实践方面探索明显不够,以致难以准确判断前后两诉是否构成重复起诉。《民诉法解释》第二百四十七条首次明确判断前后两诉是否构成重复起诉的条件,但是仍无法避免陷入诉讼标的理论、诉讼标的与诉讼请求关系的纠葛中。不同诉的类型其诉讼目的不同,诉讼目的与诉讼标的紧密相连,诉的类型影响诉讼标的的识别标准,故可根据前后两诉诉的类型适用不同诉讼标的识别标准,予以判断前后两诉是否构成重复起诉。前后诉都为确认之诉和形成之诉,仍沿用旧实体法的标准以争议法律关系作为识别标准;前后诉都为给付之诉的,以新二分肢说当事人诉的声明结合事实理由作为识别标准更为适宜;对于前后诉为不同类型的诉,区分为给付之诉先行型、确认之诉先行型和形成之诉先行型予以具体分析。若当事人提起的后诉与前诉构成重复起诉,尚未受理应裁定不予受理,已经受理尚未作出判决应裁定驳回起诉,但对于法律或司法解释明文规定不作为重复起诉处理或符合属于重复起诉但不加以禁止的情形则不按前述方式处理。
[Abstract]:Repeated prosecution is a kind of lawsuit phenomenon that has been criticized for a long time in our country, which is regulated by the principle of non bis in idem for a long time, until Article 247 of the interpretation of Civil procedure Law issued by the Supreme people's Court in 2015 explicitly stipulated that repeated prosecution is prohibited. The prohibition of repeated prosecution begins by law, and the idea of repeated prosecution begins to infiltrate into theory and judicial practice. The repeated prosecution prohibited by Article 247 of the Civil procedure Law, Repeated prosecutions, including "in the course of proceedings" and "after the entry into force of the decision", do not follow the general practice of civil law countries (the prohibition of duplicate prosecution only includes litigation, The repeated prosecution of "after the effective judgment" is brought into the category of res judicata), but follows the double connotation of "no longer reason" in the ancient Roman period, which will prohibit the repeated prosecution from being equal to the principle of the matter no longer. Because the theory of litigation in our country is still in the stage of "a hundred flowers blossom", the legislation of repeated prosecution regulation, the research of scholars and the judicial practice are obviously insufficient. Therefore, it is difficult to accurately judge whether the two complaints constitute repeated prosecution. Article 247 of the Civil procedure Law explains clearly for the first time whether the two complaints constitute the conditions for repeated prosecution, but it is still impossible to avoid falling into the theory of the subject of the lawsuit. The dispute between the object of the lawsuit and the claim. Different types of litigation have different purpose of litigation, the purpose of litigation is closely related to the object of action, and the type of action affects the standard of identification of object of action. Therefore, different standards of identification of object of action can be applied according to the type of action before and after the action. Judge whether the two complaints constitute repeated prosecution. Both the former and the former are confirmed and formed, and the standard of the old substantive law is still used as the criterion for the identification of the dispute legal relationship; for both the former and the former, the legal relationship is the standard for the identification; the former and the former are both for the payment of the complaint. It is more appropriate to take the declaration of the parties' action of the new dichotomy as the identification standard combined with the factual reasons, and to analyze concretely that the former and the former are different types of litigation, which are the first type of action for payment, the type of confirmation of action and the type of leading form of action. If the subsequent action and the former action filed by the parties constitute a duplicate prosecution, the failure to accept the case shall be ruled inadmissible, and if the decision has not been accepted, the prosecution shall be rejected by a ruling. However, it is not dealt with in the manner described above when the legal or judicial interpretation expressly provides that it is not dealt with as repeated prosecution or is consistent with the case of repeated prosecution but is not prohibited.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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