禁止重复起诉规则探析
发布时间：2018-08-03 19:20
【摘要】：自2015年新民诉解释引入重复起诉与禁止重复起诉规则以来,禁止重复起诉规则逐渐得到民事诉讼法学界的重视,学者们普遍认为无论是在我国还是大陆法系国家,禁止重复起诉规则的理论和实践均涉及诸多问题,其中最为关键的是如何审查和判断“重复起诉”。民诉解释247条给出的构成要件内涵过小而外延过大,适用性较弱,无法满足司法实践的现实需要,导致不同法院对同一规则的理解和适用不一致甚至相互冲突、矛盾。此外,由于禁止重复起诉规则牵涉的相关理论较为广泛,也非一条解释所能涵盖。另一方面,由于国内学者对禁止重复起诉规则的研究方兴未艾,仍局限于国外制度引进的层面,尚未能结合国内法院具体裁判中存在的问题开展综合研究。然而,明晰禁止重复起诉规则各构成要件的具体内容及相关的法律效力,通过对民诉解释247条进行学理上的再解释,十分有利于禁止重复起诉规则得到合理高效的适用。鉴于此,笔者认为有必要对禁止重复起诉规则相关问题进行探讨。本文包括引言、正文、结语三个部分。正文包括五个部分:第一部分:裁判案例引入与问题引出。本部分通过举示与禁止重复起诉规则相关的典型案例,提出人民法院在适用禁止重复起诉规则时存在的问题,以期引出下文对该规则更为详细的论述。笔者结合理论分析案例,认为法院在适用禁止重复起诉规则时存在“判断前后诉当事人同一的标准过于机械”、“诉讼标的的识别标准不一”、“对重复起诉的审查局限于当事人的陈述”等问题。本部分所列示的三个典型案例当然无法反映法院在适用禁止重复起诉规则时存在的所有问题,但是此三个问题具有相当的代表性,是本文将集中精力解决的重要问题。第二部分:本部分围绕一事不再理原则与禁止重复起诉规则的表里关系展开论述。通过明晰禁止重复起诉规则的内涵及其规范趣旨,形成对禁止重复起诉规则的初步认识。进而立足于比较法的研究视角,窥探一事不再理原则应有的内涵,从而明确一事不再理原则与禁止重复起诉规则之间的指导与被指导的关系。由于本文主要研究诉讼系属语境下的禁止重复起诉规则,将其与同受一事不再理原则指导的既判力理论进行比较,探查二者存在的联系与区别,以期避免在理解适用过程中出现混淆。第三部分:禁止重复起诉规则的构成要件。本文采用“两分说”,主要从当事人和诉讼标的两个方面展开论述,以此作为判断前后诉是否同一的标准。争点共通并不能作为独立的构成要件而仅能作为判断前后诉是否属于同一纠纷的标准。此外,前后诉当事人相同当然属于禁止重复起诉规则的构成要件,在广义的禁止重复起诉规则之下,前后诉当事人不同仍然可能构成重复起诉,只不过要求后诉原告在前诉中提起反诉而不得另行起诉。第四部分:禁止重复起诉规则辖下的抵销抗辩和部分请求。本部分主要讨论前诉当事人在后诉中以同一债权主张抵销抗辩和标的可分债权人分别向法院提出部分请求的问题。前者包括诉讼先行、抗辩先行和抗辩共存三种类型,由于法院对抵销抗辩的审理发生既判力,而对债权做出的给付判决并没有直接变动权利义务关系的效果,因此可以允许当事人先起诉后抗辩,反之不可。在禁止重复起诉规则语境下讨论部分请求实非难事,理论上的通说认为应当通过诉的扩张解决,而不允许当事人另行起诉。第五部分:禁止重复起诉规则的重塑。本部分包括禁止重复起诉规则的制度安排和禁止重复起诉规则的具体的适用方法。首先,不仅法院可依职权调查当事人的起诉是否构成重复诉讼,对方当事人亦可提出程序型抗辩以排除法院的管辖。其次,禁止重复起诉规则与既判力遮断效联系密切却实属两端,笔者认为应当分别规制,并行规制容易导致适用混乱、相互袭扰。
[Abstract]:Since the introduction of the rules of repeated prosecution and prohibition of duplication of prosecution in 2015, the rules of prohibiting repeated prosecution have been paid more attention to in the civil procedure law circle. Scholars generally believe that both in China and in civil law countries, the theory and practice of prohibiting repeated prosecution rules are involved in many problems. How to review and judge the "repeated prosecution". The 247 articles of the interpretation of the people's complaints are too small, too extensive and weak in applicability, which can not meet the practical needs of judicial practice, which leads to the different courts' understanding and application of the same rules, which are inconsistent, even conflicting, and contradictory. In addition, the relevant rules involving the prohibition of repeated prosecution rules are related. On the other hand, the study of the rules for the prohibition of repeated prosecution is still in the ascendant, and it is still limited to the introduction of foreign institutions and has not been able to carry out a comprehensive study of the problems existing in the specific referees of the domestic courts. However, it is clear that the elements of the rules of repeated prosecution are prohibited. In view of this, the author thinks it is necessary to discuss the rules related to the prohibition of repeated prosecution. This article includes the introduction, the text, and the conclusion of the 247 parts. The text contains three parts. This part includes five parts: the first part: the introduction of the referee's case and the problem elicited. This part puts forward the problems of the people's court in the application of the rules of prohibiting repeated prosecution, in order to elicit a more detailed discussion of the rule. In the application of the rules for the prohibition of repeated prosecution, there are three typical cases shown in this part cannot reflect the application of the court in the application of "the standard of the same party before and after judgment is too mechanical", "the standard of recognition of the subject matter is different", and the "review of the repeated prosecution is limited to the statement of the parties". All the problems existing in the rule, but the three problems are quite representative, which are the important problems that this article will concentrate on. The second part: this part discusses the relationship between the no longer principle and the rules of the prohibition of repeated prosecution. A preliminary understanding of the rules for the prohibition of duplication of prosecution, and based on the perspective of comparative law, to explore the connotation of the principle of no longer principle, and to clarify the relationship between the guidance and the guidance between the principle of no longer and the rules of the prohibition of repeated prosecution. It compares with the theory of res judicata, which is under the guidance of the principle of no longer principle, and probes into the relations and differences between the two, in order to avoid confusion in the process of understanding and application. The third part: the constitution of the rule of prohibiting repeated prosecution. This article adopts the "two points", and mainly discusses the two aspects of the parties and the subject of litigation. This is the standard of judging whether or not the front and back suit is the same. It can not be used as an independent constituent element but can only be used as the standard of judging whether the front and back complaints belong to the same dispute. In addition, the same party and former litigants are of course the constituent elements of the rules of prohibition of repeated prosecution. Different people may still constitute a repeated prosecution, but the plaintiff is only required to file a counterclaim in the former lawsuit and not to be prosecuted separately. The fourth part: the counterplea and some requests under the rules of the prohibition of repeated prosecution. This part mainly discusses the former litigant in the latter lawsuit against the counterplea and the marked creditor in the same claim. The former includes three types of requests to the court. The former includes the litigation forerunner, the counterplea and the defense coexistence, because the court has the force of adjudications on the trial of the counterplea, and the payment judgment made to the creditor's right does not directly change the effect of the right and obligation relationship. Therefore, the party may be allowed to prosecute after the defense, and vice versa. In the context of prohibiting the rules of repeated prosecution, it is not difficult to discuss part of the request. In theory, the theory that the party should be solved through the expansion of the lawsuit and not allow the parties to prosecute separately. The fifth part: the remolding of the rules of the prohibition of repeated prosecution. This part includes the system arrangement of prohibiting the rules of repeated prosecution and the specific application of the rules of prohibiting repeated prosecution. First, not only the court can investigate whether the litigant's prosecution constitutes a repeated lawsuit, but the other party can also put forward a procedural defense to exclude the jurisdiction of the court. Secondly, the rules of the prohibition of repeated prosecution are closely related to the two ends of the ruling force, but the author thinks that it should be regulated separately, and the parallel regulation is easy to lead to the application mix. Messy and harassing each other.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.1
本文编号：2162755
[Abstract]:Since the introduction of the rules of repeated prosecution and prohibition of duplication of prosecution in 2015, the rules of prohibiting repeated prosecution have been paid more attention to in the civil procedure law circle. Scholars generally believe that both in China and in civil law countries, the theory and practice of prohibiting repeated prosecution rules are involved in many problems. How to review and judge the "repeated prosecution". The 247 articles of the interpretation of the people's complaints are too small, too extensive and weak in applicability, which can not meet the practical needs of judicial practice, which leads to the different courts' understanding and application of the same rules, which are inconsistent, even conflicting, and contradictory. In addition, the relevant rules involving the prohibition of repeated prosecution rules are related. On the other hand, the study of the rules for the prohibition of repeated prosecution is still in the ascendant, and it is still limited to the introduction of foreign institutions and has not been able to carry out a comprehensive study of the problems existing in the specific referees of the domestic courts. However, it is clear that the elements of the rules of repeated prosecution are prohibited. In view of this, the author thinks it is necessary to discuss the rules related to the prohibition of repeated prosecution. This article includes the introduction, the text, and the conclusion of the 247 parts. The text contains three parts. This part includes five parts: the first part: the introduction of the referee's case and the problem elicited. This part puts forward the problems of the people's court in the application of the rules of prohibiting repeated prosecution, in order to elicit a more detailed discussion of the rule. In the application of the rules for the prohibition of repeated prosecution, there are three typical cases shown in this part cannot reflect the application of the court in the application of "the standard of the same party before and after judgment is too mechanical", "the standard of recognition of the subject matter is different", and the "review of the repeated prosecution is limited to the statement of the parties". All the problems existing in the rule, but the three problems are quite representative, which are the important problems that this article will concentrate on. The second part: this part discusses the relationship between the no longer principle and the rules of the prohibition of repeated prosecution. A preliminary understanding of the rules for the prohibition of duplication of prosecution, and based on the perspective of comparative law, to explore the connotation of the principle of no longer principle, and to clarify the relationship between the guidance and the guidance between the principle of no longer and the rules of the prohibition of repeated prosecution. It compares with the theory of res judicata, which is under the guidance of the principle of no longer principle, and probes into the relations and differences between the two, in order to avoid confusion in the process of understanding and application. The third part: the constitution of the rule of prohibiting repeated prosecution. This article adopts the "two points", and mainly discusses the two aspects of the parties and the subject of litigation. This is the standard of judging whether or not the front and back suit is the same. It can not be used as an independent constituent element but can only be used as the standard of judging whether the front and back complaints belong to the same dispute. In addition, the same party and former litigants are of course the constituent elements of the rules of prohibition of repeated prosecution. Different people may still constitute a repeated prosecution, but the plaintiff is only required to file a counterclaim in the former lawsuit and not to be prosecuted separately. The fourth part: the counterplea and some requests under the rules of the prohibition of repeated prosecution. This part mainly discusses the former litigant in the latter lawsuit against the counterplea and the marked creditor in the same claim. The former includes three types of requests to the court. The former includes the litigation forerunner, the counterplea and the defense coexistence, because the court has the force of adjudications on the trial of the counterplea, and the payment judgment made to the creditor's right does not directly change the effect of the right and obligation relationship. Therefore, the party may be allowed to prosecute after the defense, and vice versa. In the context of prohibiting the rules of repeated prosecution, it is not difficult to discuss part of the request. In theory, the theory that the party should be solved through the expansion of the lawsuit and not allow the parties to prosecute separately. The fifth part: the remolding of the rules of the prohibition of repeated prosecution. This part includes the system arrangement of prohibiting the rules of repeated prosecution and the specific application of the rules of prohibiting repeated prosecution. First, not only the court can investigate whether the litigant's prosecution constitutes a repeated lawsuit, but the other party can also put forward a procedural defense to exclude the jurisdiction of the court. Secondly, the rules of the prohibition of repeated prosecution are closely related to the two ends of the ruling force, but the author thinks that it should be regulated separately, and the parallel regulation is easy to lead to the application mix. Messy and harassing each other.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.1
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