共有物分割诉讼研究
发布时间：2018-09-11 12:59
【摘要】：共有广泛存在于我们生活的各个领域，有时共有导致共有财产的利用效率低下，共有人基于某些考虑要求分割共有物。关于共有物的分割各共有人可以合意进行，即达成分割协议，不能产生合意时，可借助法院的力量解决纠纷。在两种分割过程中，共有人因产生纠纷诉至法院，即产生我们所谓的共有物分割诉讼（协议分割之诉和裁判分割之诉）。 共有物分割诉讼旨在消灭共有关系，由共有变更为各共有人单独所有。共有物分割特别是裁判分割之诉，其诉讼性质及诉讼标的、法院审理原则和审理方式与一般诉讼不同，如何解决具体诉讼中的问题，以及共有物分割诉讼问题在理论上和实务上如何考虑，有重要的研究价值。可惜的是关于共有物分割的研究，着重在物权理论的探讨，很少有将共有物分割的问题从诉讼法的角度进行研究。我国大陆地区关于共有物分割诉讼的文章少之又少。本文在借鉴日本及台湾地区关于该问题的探讨及现有形成理论的基础上，结合实体法和诉讼法相关理论的分析，对共有物分割诉讼的诉讼性质、诉讼标的、审判方式及裁判的效力等诉讼问题进行梳理汇总，进而提出自己不成熟的看法。本文除引言和结语外，共分为四部分。 第一部分为共有物分割概述。该部分主要包括三方面：一是共有物分割的方式，包括协议分割和裁判分割。二是按份共有和共同共有的分割时间。三是共有物分割的理论基础。论述了按份共有的显在应有部分及共同共有的潜在应有部分。 第二部分是共有物分割诉讼的诉讼法上的基础理论。首先论述了协议分割之诉和裁判分割之诉的诉讼性质，即为给付之诉和形式上的形成之诉兼具给付之诉的性质。在此之前，探讨共有物分割请求权的性质，认为共有物分割请求权为形成诉权。其次界定两类诉讼的诉讼标的，认为协议分割之诉诉讼标的为协议上的履行请求权，裁判分割之诉诉讼标的为形成诉权。然后就共有物分割诉讼的管辖法院问题进行阐释。最后论述了共有物分割诉讼中当事人制度。 第三部分是共有物分割诉讼的审理中的问题探讨。主要就审判过程中的特殊审理原则和通常审理方式的修正进行阐述。具体为：一是协议分割之诉中一人或数人起诉，其诉讼请求应是双方互相履行协议而非仅主张对方为履行行为。而裁判分割诉讼中，论述了原告应否表明分割方法、其应有部分，可否请求一部分割或合并分割的问题。二是法院审判范围的问题，即法院的审判范围可否超出当事人的诉讼请求的范围。三是就裁判分割之诉而言，其诉讼费用如何分担更为合理公平。在裁判分割之诉中适用通常原则有失公平，应以原告诉讼可得的客观利益为标准收取费用。四是共有物分割诉讼的二审程序的论述，具体为上诉审程序中的当事人制度，及一部上诉时判决之全部发生移审效力的问题。 第四部分为共有物分割诉讼的裁判及裁判的效力。主要包括两方面：一是就协议分割之诉和裁判分割之诉的判决类型及裁判分割之诉判决中分割方法的确定和内容进行论述。二是分割裁判的效力。从判决的既判力、形成力、执行力三方面进行阐述。着重论述了裁判分割之诉的判决是否具有执行力的问题，本文认为裁判分割之诉的判决为含给付内容的形成判决，，具有执行力。为避免突袭执行，被执行人可提起执行异议之诉。
[Abstract]:Common ownership exists widely in all areas of our lives. Sometimes common ownership leads to inefficient use of common property. Common owners demand the division of common property on the basis of certain considerations. In the process of partition, the co-owners bring a dispute to the court, that is, the so-called partition of common property litigation (the litigation of agreement partition and the litigation of judgment partition).
The action of division of common property aims at eliminating the relationship of common ownership and changing it from common ownership to separate ownership by each common owner. Regrettably, the study on the division of common property focuses on the theory of property rights, and seldom studies the division of common property from the perspective of procedural law. Based on the discussion of this issue and the existing theory of formation, and combined with the analysis of the relevant theories of substantive law and procedural law, this paper summarizes the litigation nature, the object of action, the way of trial and the effectiveness of adjudication of the division of common property litigation, and then puts forward its own immature views. The four part.
The first part is an overview of the division of common property. This part mainly includes three aspects: first, the way of the division of common property, including the division by agreement and judgment; second, the division time by share and common; third, the theoretical basis of the division of common property.
The second part is the basic theory of the procedure law of the action of division of common property.Firstly, it discusses the litigation nature of the action of division of agreement and the action of division of adjudication, that is, the action for payment and the action for formation of form have the nature of both the action for payment.Before that, it discusses the nature of the claim for division of common property and holds that the claim for division of common property is in form. Secondly, it defines the object of litigation of the two types of litigation, and holds that the object of litigation of agreement division is the right to claim for performance on the agreement, and the object of litigation of judgment division is the right to form litigation.
The third part is the discussion of the problems in the trial of the action of division of common property.It mainly expounds the special trial principle and the revision of the common trial method in the trial process.The first part is that in the action of division of agreement, one or more persons sue, and the claim of action should be that the two parties perform the agreement with each other instead of only advocating the other to perform the act. In the dividing action of judgment, the author discusses whether the plaintiff should indicate the dividing method, whether the plaintiff should request the dividing or merging of some parts. It is unfair to apply the general principle in the division of adjudication, and the fee should be charged on the basis of the objective benefits available to the original lawsuit.
The fourth part is the judgment and the judgment effect of the action of division of common property. It mainly includes two aspects: one is the judgment type of the action of division of agreement and the action of division of judgment, and the determination and content of the division method in the judgment of division of judgment. This paper focuses on the issue of whether the judgment of the action of division of judgment is enforceable. The judgment of the action of division of judgment is a judgment which contains the content of payment and is enforceable.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
本文编号：2236754
[Abstract]:Common ownership exists widely in all areas of our lives. Sometimes common ownership leads to inefficient use of common property. Common owners demand the division of common property on the basis of certain considerations. In the process of partition, the co-owners bring a dispute to the court, that is, the so-called partition of common property litigation (the litigation of agreement partition and the litigation of judgment partition).
The action of division of common property aims at eliminating the relationship of common ownership and changing it from common ownership to separate ownership by each common owner. Regrettably, the study on the division of common property focuses on the theory of property rights, and seldom studies the division of common property from the perspective of procedural law. Based on the discussion of this issue and the existing theory of formation, and combined with the analysis of the relevant theories of substantive law and procedural law, this paper summarizes the litigation nature, the object of action, the way of trial and the effectiveness of adjudication of the division of common property litigation, and then puts forward its own immature views. The four part.
The first part is an overview of the division of common property. This part mainly includes three aspects: first, the way of the division of common property, including the division by agreement and judgment; second, the division time by share and common; third, the theoretical basis of the division of common property.
The second part is the basic theory of the procedure law of the action of division of common property.Firstly, it discusses the litigation nature of the action of division of agreement and the action of division of adjudication, that is, the action for payment and the action for formation of form have the nature of both the action for payment.Before that, it discusses the nature of the claim for division of common property and holds that the claim for division of common property is in form. Secondly, it defines the object of litigation of the two types of litigation, and holds that the object of litigation of agreement division is the right to claim for performance on the agreement, and the object of litigation of judgment division is the right to form litigation.
The third part is the discussion of the problems in the trial of the action of division of common property.It mainly expounds the special trial principle and the revision of the common trial method in the trial process.The first part is that in the action of division of agreement, one or more persons sue, and the claim of action should be that the two parties perform the agreement with each other instead of only advocating the other to perform the act. In the dividing action of judgment, the author discusses whether the plaintiff should indicate the dividing method, whether the plaintiff should request the dividing or merging of some parts. It is unfair to apply the general principle in the division of adjudication, and the fee should be charged on the basis of the objective benefits available to the original lawsuit.
The fourth part is the judgment and the judgment effect of the action of division of common property. It mainly includes two aspects: one is the judgment type of the action of division of agreement and the action of division of judgment, and the determination and content of the division method in the judgment of division of judgment. This paper focuses on the issue of whether the judgment of the action of division of judgment is enforceable. The judgment of the action of division of judgment is a judgment which contains the content of payment and is enforceable.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
【参考文献】
相关期刊论文 前2条
1 李龙;论民事判决的既判力[J];法律科学.西北政法学院学报;1999年04期
2 李龙;论我国民事诉讼标的理论的基本框架[J];法学;1999年07期
本文编号：2236754
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