论民事公告送达

发布时间：2018-09-01 15:08

【摘要】：民事公告送达是一项重要的民事送达方式,它是所有送达方式中最特殊的一种送达方式,其特殊性不仅在于其拟制、推定、补充等特性,更在于其本质上是以公开的方式传递、送达诉讼信息。这种送达方式的存在对于缓解民事送达工作中的“送达难”起着不可估量的作用,可以说一旦启用公告送达,必定会实现送达,诉讼程序就不会中断。但是这种送达方式可能会对受送达人的正当权益造成一定威胁,是司法公正与司法效率相互博弈下做出的矛盾选择,慎用是其题中应有之意。如何既保证公平又不失效率,是公告送达运行中诉讼工作努力的课题。正当、合理适用民事公告送达,利益攸关,应是司法审判努力的方向。然而目前,我国的民事公告送达的实际运行状态并不乐观。首先,立法对民事公告送达的规定很不健全,法律条文不多且规定简略粗糙,2012年新修订的《民事诉讼法》也未将公告送达制度的修订提到日程上来。具体缺陷表现为：适用标准模糊、公告方式不科学且滞后于时代的发展、公告期限不合理、公告的程序规定笼统、公告法律后果只字未提、不当适用的责任承担机制未见说明等等。其次,立法的先天漏洞反射到司法实践中也带来了诸多问题,当然这与司法实践自身也脱不开关系,与法院及办案法官的职责意识及法律意识也不无关系。具体为：适用任意扩大化、适用率上升、适用审查机制不健全、错误适用及瑕疵适用常见、程序具体运行缺乏可操作性、送达效果差接近“送而不达”、缺席判决率非常高,加之由于法院及法官自身原因,此类案件审判模式常常简化。上述因素共同作用,常常会侵害当事人尤其受送达人的权益,引发他们对诉讼审判及国家司法机关的不满。社会上,人们对民事公告送达的反响也不好,大多比较排斥这种送达方式,一来很陌生,二来此方式经常“侵权”。总体上,公告送达确实在一定程度上缓解了“送达难”,也有很多值得推崇的价值,但对其在立法、司法及社会中的不良讯号,我们不能视而不见。改良民事公告送达制度,治其缺陷,除其弊端,从立法源头抓起,完善法律,建构一套合规合理的运行机制,明确申请方举证责任制度,建立恶意当事人惩罚制度,贯彻合议庭严格审查裁定程序,落实受送达人的异议及补救权利,加强人民检察院对民事公告送达的监督,配以拥有较高法律素养、较好内心良知的办案人员的正当适用,是民事公告送达的理想运行状态,但也将是一个需要投入成本的长期任务。公告送达的缺陷、弊端及其适用中引起的负效应,严重时,会使制度设计的初衷及价值大打折扣。这不论对立法还是司法都是一种损伤,而最终的责任承担者、代价付出者是当事人,是求助于法律、期盼获得公平审判的诉讼利用者。故而,完善我国的民事公告送达制度势在必行。
[Abstract]:The service of civil notice is an important way of civil service. It is the most special way of service in all ways of service. Its particularity lies not only in its characteristics of fiction, presumption and supplement, but also in its essence being transmitted in an open way. Service of litigation information. The existence of this service mode plays an inestimable role in alleviating the "service difficulty" in civil service work. It can be said that once public notice service is used, service will be realized, and the proceedings will not be interrupted. However, this mode of service may pose a certain threat to the legitimate rights and interests of the addressee, and it is a contradictory choice made under the mutual game of judicial justice and judicial efficiency. How to ensure both fairness and efficiency is the subject of litigation work in the operation of notice service. Proper and reasonable application of civil notice service, the interests should be the direction of judicial efforts. However, at present, the actual operation state of civil notice service in our country is not optimistic. First of all, the provisions of the legislation on the service of civil notices are not perfect, the provisions of the law are not many and rough, and the newly revised Civil procedure Law in 2012 has not put the revision of the notice service system on the agenda. The concrete defects are as follows: the applicable standard is vague, the way of announcement is unscientific and lags behind the development of the times, the time limit of the announcement is unreasonable, the procedural provisions of the announcement are general, the legal consequences of the announcement are not mentioned at all, Improper application of the accountability mechanism has not been explained and so on. Secondly, the inherent loophole of legislation also brings many problems to the judicial practice, which is also related to the judicial practice itself, and the sense of duty and legal consciousness of the court and the judge handling cases. The main contents are as follows: the application is expanded arbitrarily, the application rate is increased, the applicable examination mechanism is not perfect, the application of errors and defects is common, the concrete operation of the procedure lacks operability, the poor effect of service is close to "sending but not reaching", and the rate of default judgment is very high. In addition, due to the court and judges themselves, this kind of trial mode is often simplified. Together, these factors often infringe upon the rights and interests of the parties, especially the addressee, and cause their dissatisfaction with the litigation, trial and national judicial organs. In the society, people's response to civil notice service is not good, most of them reject this service way, one is very strange, the other is often "tort". On the whole, notice service does alleviate the difficulty of service to some extent, and has a lot of value, but we can not ignore its bad signals in legislation, judicature and society. To improve the system of civil notice service, to cure its defects, to remove its drawbacks, to start from the source of legislation, to perfect the law, to construct a set of compliance and reasonable operation mechanism, to clarify the system of the applicant's burden of proof, and to establish the system of punishment of malicious parties. To implement the collegial panel's strict examination and adjudication procedures, to implement the rights of the addressee to object and remedy, to strengthen the supervision of the people's procuratorate on the service of civil public notices, and to match the proper application of the case handlers with higher legal literacy and a better inner conscience, It is the ideal operation state of civil notice service, but it will also be a long-term task with input cost. The defects, drawbacks and negative effects in the application of notice service will greatly reduce the original intention and value of the system design. This is a kind of injury to both legislation and judicature, and the ultimate duty bearers, who pay the price, are the litigants who turn to the law and hope to get a fair trial. Therefore, it is imperative to perfect our civil notice service system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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