诉讼信托制度研究
发布时间：2018-08-24 08:26
【摘要】：诉讼信托是委托人将实体权利及相应诉讼权利转移给受托人，由受托人以诉讼当事人的身份，为实现实体利益进行诉讼，产生的诉讼利益归于受益人的一种制度和诉讼当事人形式。诉讼信托将诉讼法中的当事人适格理论与实体法上的信托制度相结合，利用信托制度的灵活性来实现适格当事人的向外扩张，，从而软化刚性的诉讼格局。然而诉讼信托面临的现实困境是日本、韩国、我国以及台湾地区的立法只在特殊情形下承认诉讼信托，而都在信托法上对此持否定态度。近年来对于诉讼信托的正当性问题学界颇有争论，本文欲厘清诉讼信托的内涵外延，考察诉讼信托在域外的立法及司法实践，论证诉讼信托的正当性问题，以期对诉讼信托在我国的发展有所裨益。 本文除去导言和结语部分，共分为四个章节。 第一章主要探讨诉讼信托的概念，与相关概念的区别以及诉讼信托的基本特征等问题。针对诉讼信托的概念出现了三种观点，笔者首先将对这三种观点分别进行阐述并在此基础上完成本文对诉讼信托的界定，其次厘清诉讼信托与诉讼担当、诉讼代理等易被混淆的相关概念，最后对诉讼信托的基本特征进行概括和阐释。 第二章以当事人适格理论的发展作为线索，介绍当事人、当事人适格以及诉讼实施权的基本概念。诉讼信托是适格当事人扩张的一种具体手段，本文将在明晰基础概念的基础上探讨诉讼信托中受托人能够作为适格当事人提起诉讼的诉权基础何在。 第三章主要考察诉讼信托在域外的立法与司法实践状况。日本虽然在信托法中对诉讼信托予以了禁止，然关于该条立法也存在诸多争议，且司法实践中也容许合理诉讼信托作为一种权利实现的方式。我国台湾地区借鉴了日本禁止诉讼信托的做法，也对诉讼信托持否定态度。德国的团体诉讼是一种不作为之诉，但在其他国家的运行已超出此范围，关于团体诉讼的诉权基础学界颇有争论，本文认为正是诉讼信托。 第四章展望了诉讼信托在我国的未来。第一节分析了诉讼信托在我国的现状，虽然我国信托法亦对诉讼信托予以了禁止，然诉讼信托在著作权保护等领域已经发挥了重要作用。第二节论证诉讼信托的合法性。一是驳斥了禁止诉讼信托的理由，二是论述了诉讼信托本身存在的价值意义。第三节提出了诉讼信托立法解禁的限制以及构成要件。第四节分别阐述了私益诉讼信托和公益诉讼信托在我国的归属，由于法治环境的不完善和信托市场的不规范，私益诉讼信托虽有其价值却应审慎对待之，而公益诉讼信托在保护公益方面有极大的利用价值应得到不断培育和完善。
[Abstract]:Litigation trust means that the principal transfers the substantive rights and the corresponding litigation rights to the trustee, and the trustee acts as the litigant to litigate in order to realize the substantive interests, A system and form of litigation in which benefits accrue to the beneficiary. Litigation trust combines the theory of party suitability in procedural law with the trust system in substantive law, and utilizes the flexibility of trust system to realize the outward expansion of suitably qualified parties, thus softening the rigid litigation pattern. However, the realistic dilemma faced by litigation trust is that the legislation of Japan, Korea, China and Taiwan only recognizes litigation trust under special circumstances, and holds a negative attitude towards it in the trust law. In recent years, there has been some controversy about the legitimacy of litigation trust in academic circles. This paper intends to clarify the connotation and extension of litigation trust, investigate the legislation and judicial practice of litigation trust outside the country, and prove the legitimacy of litigation trust. The aim is to benefit the development of litigation trust in our country. Apart from the introduction and conclusion, this paper is divided into four chapters. The first chapter mainly discusses the concept of Litigation Trust, the difference between Litigation Trust and related concepts, and the basic characteristics of Litigation Trust. There are three viewpoints on the concept of Litigation Trust. Firstly, the author will expound the three viewpoints and then complete the definition of Litigation Trust in this paper, and then clarify the Litigation Trust and Litigation responsibility. The related concepts such as litigation agent are easily confused. Finally, the basic characteristics of litigation trust are summarized and explained. The second chapter introduces the basic concepts of litigant, litigant fit and litigant enforcement right, taking the development of the theory of litigant fitness as the clue. Litigation trust is a concrete means of the expansion of suitably litigant. This paper will discuss where the trustee can act as the basis of litigant's right of action in the litigation trust on the basis of clear basic concept. The third chapter mainly investigates the legislation and judicial practice of litigation trust. Although Japan has prohibited the litigation trust in the trust law, there are still many disputes about the legislation, and the judicial practice also allows the reasonable litigation trust as a way to realize the right. The Taiwan area of our country draws lessons from Japan's practice of prohibiting litigation trust, and also holds a negative attitude towards litigation trust. The action of class action in Germany is a kind of action of omission, but the operation in other countries has exceeded this range. There is a dispute about the foundation of the right of action in class action. This article holds that it is the trust of litigation. The fourth chapter looks forward to the future of litigation trust in our country. The first section analyzes the present situation of litigation trust in our country. Although the trust law of our country also forbids litigation trust, litigation trust has already played an important role in copyright protection and so on. The second section demonstrates the legality of litigation trust. One is to refute the reason of prohibiting litigation trust, the other is to discuss the value meaning of litigation trust itself. The third section puts forward the limitation and constitutive elements of the lifting of the prohibition by the litigation trust legislation. The fourth section expounds the ownership of private interest litigation trust and public interest litigation trust in our country. Due to the imperfect legal environment and the non-standard trust market, the private interest litigation trust should be treated prudently although it has its value. And the trust of public interest litigation should be cultivated and perfected continuously in the aspect of protecting public interest.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
本文编号：2200207
[Abstract]:Litigation trust means that the principal transfers the substantive rights and the corresponding litigation rights to the trustee, and the trustee acts as the litigant to litigate in order to realize the substantive interests, A system and form of litigation in which benefits accrue to the beneficiary. Litigation trust combines the theory of party suitability in procedural law with the trust system in substantive law, and utilizes the flexibility of trust system to realize the outward expansion of suitably qualified parties, thus softening the rigid litigation pattern. However, the realistic dilemma faced by litigation trust is that the legislation of Japan, Korea, China and Taiwan only recognizes litigation trust under special circumstances, and holds a negative attitude towards it in the trust law. In recent years, there has been some controversy about the legitimacy of litigation trust in academic circles. This paper intends to clarify the connotation and extension of litigation trust, investigate the legislation and judicial practice of litigation trust outside the country, and prove the legitimacy of litigation trust. The aim is to benefit the development of litigation trust in our country. Apart from the introduction and conclusion, this paper is divided into four chapters. The first chapter mainly discusses the concept of Litigation Trust, the difference between Litigation Trust and related concepts, and the basic characteristics of Litigation Trust. There are three viewpoints on the concept of Litigation Trust. Firstly, the author will expound the three viewpoints and then complete the definition of Litigation Trust in this paper, and then clarify the Litigation Trust and Litigation responsibility. The related concepts such as litigation agent are easily confused. Finally, the basic characteristics of litigation trust are summarized and explained. The second chapter introduces the basic concepts of litigant, litigant fit and litigant enforcement right, taking the development of the theory of litigant fitness as the clue. Litigation trust is a concrete means of the expansion of suitably litigant. This paper will discuss where the trustee can act as the basis of litigant's right of action in the litigation trust on the basis of clear basic concept. The third chapter mainly investigates the legislation and judicial practice of litigation trust. Although Japan has prohibited the litigation trust in the trust law, there are still many disputes about the legislation, and the judicial practice also allows the reasonable litigation trust as a way to realize the right. The Taiwan area of our country draws lessons from Japan's practice of prohibiting litigation trust, and also holds a negative attitude towards litigation trust. The action of class action in Germany is a kind of action of omission, but the operation in other countries has exceeded this range. There is a dispute about the foundation of the right of action in class action. This article holds that it is the trust of litigation. The fourth chapter looks forward to the future of litigation trust in our country. The first section analyzes the present situation of litigation trust in our country. Although the trust law of our country also forbids litigation trust, litigation trust has already played an important role in copyright protection and so on. The second section demonstrates the legality of litigation trust. One is to refute the reason of prohibiting litigation trust, the other is to discuss the value meaning of litigation trust itself. The third section puts forward the limitation and constitutive elements of the lifting of the prohibition by the litigation trust legislation. The fourth section expounds the ownership of private interest litigation trust and public interest litigation trust in our country. Due to the imperfect legal environment and the non-standard trust market, the private interest litigation trust should be treated prudently although it has its value. And the trust of public interest litigation should be cultivated and perfected continuously in the aspect of protecting public interest.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
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