要件事实理论在居间合同纠纷诉讼中的应用
发布时间：2018-09-05 16:01
【摘要】：现今中国，民事诉讼中的一系列理论如诉讼标的理论、主张证明责任理论等都争相成为研究的热点，所取得的研究成果可谓汗牛充栋。但是，研究中暴露出来的问题，尤其是实体与程序相脱节的困境，绝对不容我们忽视和回避。在寻求外缘因素而无法摆脱困境的死胡同里，中村法学派方法论为我国民事诉讼理论研究带来了一丝启迪——铸造方法论工具，寻求内在突破。于是，发端于日本司法研修中的要件事实理论就在这种实体法与诉讼法分道扬镳的背景下为我们所借鉴。虽然作为一门法学理论，要件事实理论的历史并不久远，但国内外学者不懈的探索与实践使其具备了深厚的理论根基，为我国民事司法实践提供了很大的便利。但须知，静态的理论只有放到动态的实践中进行应用，才能得到检验并最终实现其价值。本文以居间合同纠纷为实践对象，将要件事实理论应用到该纠纷的诉讼过程中，指导双方当事人进行攻击防御，，使诉讼得以公正、迅速的解决。内容大致分为三部分： 第一部分是要件事实理论部分，是最基础也是最重要的部分。该部分对要件事实理论的基础概念和本质特征进行了简要的梳理，并从相关概念、特征、制度背景、思想渊源、基本问题和主要机能六个方面对其进行了详尽的阐释，为后文的具体操作铺陈了理论基石。尤其是攻击防御体系的配置，不仅使实体与程序相契合，也使诉讼与裁判相对接，具有很强的可操作性。 第二部分是要件事实理论的实践部分，可分为两小部分。前部分以居间合同纠纷为实践载体，将其常见的诉讼类型根据请求原因的不同归纳为两类：有关居间报酬纠纷的诉讼和有关居间必要费用纠纷的诉讼。并根据攻击防御体系的配置，将要件事实理论具体应用到以上两类诉讼中，分别对诉讼标的、请求原因事实、抗辩事实等进行了归纳和总结。后部分以实例分析的方式具体应用要件事实理论，将案情复杂的纠纷诉讼纳入攻击防御体系进行分析和评价，最后还指出了法院在案件实际审理和裁判过程中存在的突出问题。 第三部分是要件事实理论的延伸部分。该部分从要件事实理论的角度出发，首先对我国审前准备程序的完善提出了期望，并因此引入释明权以使法官更妥当地行使实质指挥权；然后对民事判决书的改革提出了具体要求，即在事实和理由两部分加强与要件事实有关的“说理性”。 要件事实理论作为方法论工具，其价值不仅体现在具体结论上，也体现在思考方式上。本文将要件事实理论这个大课题放在居间合同纠纷这个小视域中进行研究和实践，所得出的成果虽不值一提，但在过程中却掌握了一种法律思维方法，同时，也确定了今后学习思考的方向和路径。
[Abstract]:Nowadays, a series of theories in civil litigation, such as the theory of object of action and the theory of burden of proof, have become the focus of research. However, the problems exposed in the research, especially the dilemma of disconnection between entity and procedure, must not be ignored and avoided. In the dead end of seeking for external factors and unable to get rid of the predicament, the methodology of Nakamura School of Law has brought a hint of enlightenment to the theoretical study of civil action in China and sought for an internal breakthrough. Therefore, the fact theory, which originated in Japanese judicial research, is used for reference under the background of the separation of substantive law and procedural law. As a theory of law, the theory of facts of elements is not a long history, but the unremitting exploration and practice of scholars at home and abroad have made it have a deep theoretical foundation, which has provided great convenience for the civil judicial practice of our country. But it is important to know that the static theory can only be tested and finally realized if it is applied in dynamic practice. This paper takes the dispute of intermediary contract as the practical object, applies the theory of essential facts to the litigation process of the dispute, instructs both parties to defend themselves against attack, so that the lawsuit can be solved fairly and quickly. The content is divided into three parts: the first part is the theory of facts, the most basic part is the most important part. This part briefly combs the basic concepts and essential characteristics of the essential facts theory, and explains them in detail from the following six aspects: related concepts, characteristics, institutional background, ideological origins, basic problems and main functions. It lays the theoretical foundation for the concrete operation of the following text. Especially, the disposition of attack defense system not only makes entity and procedure coincide, but also makes litigation and judge docking, which is very maneuverable. The second part is the practical part of the theory of essential facts, which can be divided into two small parts. In the first part, the mediating contract dispute is taken as the practical carrier, and the common litigation types are classified into two categories according to the different reasons of the request: the litigation about the intermediation compensation dispute and the lawsuit about the intermediary necessary expenses dispute. According to the configuration of the defense system of attack, the theory of essential facts is applied to the above two kinds of litigation, and the object of the lawsuit, the facts of the reason of the request and the facts of the defense are summarized and summarized respectively. In the latter part, the author applies the theory of facts to analyze and evaluate the complex dispute litigation system, and finally points out the outstanding problems in the process of case trial and adjudication. The third part is the extension of the theory of essential facts. This part from the point of view of the theory of important facts, first of all, put forward the expectation to the perfection of the pretrial preparation procedure of our country, and therefore introduce the power of interpretation to make the judge exercise the substantive command more appropriately; Then it puts forward the concrete request to the reform of the civil judgment, that is, to strengthen the "theory of reason" related to the facts of the elements in both the facts and the reasons. As a methodological tool, the value of essential fact theory is not only reflected in the concrete conclusion, but also in the way of thinking. In this paper, the important fact theory is studied and put into practice in the small field of mediating contract dispute. The results obtained are not worth mentioning, but in the process, we have grasped a kind of legal thinking method, at the same time, It also determines the direction and path of learning and thinking in the future.
【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】：D923.6;D925.1
本文编号：2224762
[Abstract]:Nowadays, a series of theories in civil litigation, such as the theory of object of action and the theory of burden of proof, have become the focus of research. However, the problems exposed in the research, especially the dilemma of disconnection between entity and procedure, must not be ignored and avoided. In the dead end of seeking for external factors and unable to get rid of the predicament, the methodology of Nakamura School of Law has brought a hint of enlightenment to the theoretical study of civil action in China and sought for an internal breakthrough. Therefore, the fact theory, which originated in Japanese judicial research, is used for reference under the background of the separation of substantive law and procedural law. As a theory of law, the theory of facts of elements is not a long history, but the unremitting exploration and practice of scholars at home and abroad have made it have a deep theoretical foundation, which has provided great convenience for the civil judicial practice of our country. But it is important to know that the static theory can only be tested and finally realized if it is applied in dynamic practice. This paper takes the dispute of intermediary contract as the practical object, applies the theory of essential facts to the litigation process of the dispute, instructs both parties to defend themselves against attack, so that the lawsuit can be solved fairly and quickly. The content is divided into three parts: the first part is the theory of facts, the most basic part is the most important part. This part briefly combs the basic concepts and essential characteristics of the essential facts theory, and explains them in detail from the following six aspects: related concepts, characteristics, institutional background, ideological origins, basic problems and main functions. It lays the theoretical foundation for the concrete operation of the following text. Especially, the disposition of attack defense system not only makes entity and procedure coincide, but also makes litigation and judge docking, which is very maneuverable. The second part is the practical part of the theory of essential facts, which can be divided into two small parts. In the first part, the mediating contract dispute is taken as the practical carrier, and the common litigation types are classified into two categories according to the different reasons of the request: the litigation about the intermediation compensation dispute and the lawsuit about the intermediary necessary expenses dispute. According to the configuration of the defense system of attack, the theory of essential facts is applied to the above two kinds of litigation, and the object of the lawsuit, the facts of the reason of the request and the facts of the defense are summarized and summarized respectively. In the latter part, the author applies the theory of facts to analyze and evaluate the complex dispute litigation system, and finally points out the outstanding problems in the process of case trial and adjudication. The third part is the extension of the theory of essential facts. This part from the point of view of the theory of important facts, first of all, put forward the expectation to the perfection of the pretrial preparation procedure of our country, and therefore introduce the power of interpretation to make the judge exercise the substantive command more appropriately; Then it puts forward the concrete request to the reform of the civil judgment, that is, to strengthen the "theory of reason" related to the facts of the elements in both the facts and the reasons. As a methodological tool, the value of essential fact theory is not only reflected in the concrete conclusion, but also in the way of thinking. In this paper, the important fact theory is studied and put into practice in the small field of mediating contract dispute. The results obtained are not worth mentioning, but in the process, we have grasped a kind of legal thinking method, at the same time, It also determines the direction and path of learning and thinking in the future.
【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】：D923.6;D925.1
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