要件事实理论在运输合同纠纷诉讼中的应用

发布时间：2018-09-15 06:57

【摘要】：要件事实理论，作为日本民事诉讼实务界最为推崇亦最为核心的审判方法论，，在被我国学者引进之后，至今仍以理论介绍为主，将该理论应用于司法实践的研究较为少见。民事司法的核心，是通过对审构造程序确定实体私法所规定的权利并提供必要的救济，而对审程序的核心是法院在当事人双方攻击防御下居中审理裁判的过程，作为拥有一整套体系化理论的方法论工具，要件事实理论具备了民事诉讼理论与实践的双重魅力，较完整地梳理与分析其于一类纠纷中的应用，应能为推广该理论起到一定的作用，本文即以运输合同纠纷诉讼为例，探讨要件事实理论在司法实务中的应用。具体而言，本文涉及要件事实理论介绍及该理论在运输合同纠纷诉讼中的应用两大问题，共分为四章：第一章是全文研究的起点，即要件事实理论的介绍。源起于日本司法研修的要件事实是全文的关键词，对要件事实内涵特征、理论基础及诉讼机能的分析解释，是对该理论由表及里、从概念到理论再到实践作用的全方位审视，而对于民事诉讼目的、证明责任以及主张责任和要件事实关系的讨论，是为后文的具体应用准备工具。第二章是运输合同纠纷诉讼与要件事实理论的联结点。从介绍运输合同纠纷及其常见诉讼类型入手，以诉讼标的为分类标准，探讨要件事实理论对于划分各种纠纷诉讼类型的意义，重点以违约损害赔偿纠纷诉讼为例，分析要件事实的分类，并以该类型诉讼中当事人攻击防御的展开为线索，探讨要件事实的检索方法。第三章是全文理论与实践应用分析的核心，以运输合同货损赔偿纠纷诉讼案例为例，梳理要件事实理论的应用情况。第一节为案例描述，介绍该起纠纷诉讼的重点情况；第二节开始是对要件事实的应用情况的分析，从诉讼标的特定情况入手，明确要件事实理论的作用起点；第三节讨论当事人的攻击防御情况，以要件事实为线索，剖析当事人几轮攻击防御的方法；第四节是法官审理裁判情况的总结，以上述理论为联结，和当事人的攻击防御情况对接；第五节为该案例应用中反映出的突出问题，包括当事人攻防过程中的抗辩事实证明不充分、法官审理裁判中遗漏诉讼请求以及法律适用错误三个方面，紧扣要件事实的诉讼机能，对实践中的理论应用情况做出总结，探讨得失。第四章是要件事实理论与我国争点整理程序的建构与完善。从第三章的实践应用所反映的三个问题，总结出问题的症结点在于对上述理论应用把握的疏忽及司法实践环节的相关漏洞，即争点整理程序的缺失。笔者从争点整理程序概述出发，明确该程序对于实务审判以及上述理论应用的重要作用，考察我国有关现行立法和司法状况，并以上述理论为出发点，提出完善争点整理程序的相关建议。
[Abstract]:After being introduced by Chinese scholars, the theory of essential facts, which is the most highly respected and core trial methodology in the field of civil litigation in Japan, is still mainly introduced in theory, and the research on its application in judicial practice is rare. The core of civil justice is to determine the rights and provide necessary relief in the substantive private law through the procedure of trial construction, while the core of the trial procedure is the process of the court trying the judgment in the middle of the defense of both parties. As a methodological tool with a set of systematized theories, the theory of essential facts has the dual charm of theory and practice of civil action, which is relatively complete in combing and analyzing its application in a class of disputes. It should play a certain role in popularizing this theory. This paper, taking the dispute litigation of transportation contract as an example, discusses the application of element fact theory in judicial practice. Specifically, this paper involves the introduction of the theory of essential facts and the application of this theory in the litigation of transport contract disputes. It is divided into four chapters: the first chapter is the starting point of the research, namely the introduction of the theory of facts of elements. The essential facts originated from the judicial study in Japan are the key words of the full text. The analysis and interpretation of the connotation, theoretical basis and litigation function of the elements facts are an omni-directional examination of the theory from the outside to the inside, from the concept to the theory to the function of practice. For the purpose of civil action, the burden of proof and the discussion of the factual relationship between the claim responsibility and the elements are the preparation tools for the later application. The second chapter is the connection of the theory of transportation contract dispute litigation and elements fact. Starting with introducing the disputes of transport contract and their common types of litigation, taking the object of litigation as the classification standard, this paper discusses the significance of the theory of essential facts for the classification of various types of disputes, with the emphasis on the litigation of damages for breach of contract as an example. This paper analyzes the classification of essential facts, and discusses the retrieval method of elements facts by taking the development of the defense of the parties' attack in this kind of litigation as the clue. The third chapter is the core of the application of the theory and practice, taking the case of freight damage compensation dispute of transportation contract as an example, combing the application of the theory of essential facts. The first section is the case description, introduces the key situation of the dispute litigation, the second section begins with the analysis of the application of the facts of the elements, starting with the specific circumstances of the subject matter of the lawsuit, and clarifies the starting point of the action of the theory of the facts of the elements. The third section discusses the attack defense situation of the parties, taking the facts of the elements as the clue, analyzes the methods of several rounds of attack defense of the parties; the fourth section is the summary of the judges' adjudication, which is connected with the above theories. The fifth section is about the outstanding problems reflected in the application of the case, including the fact that the defense of the parties in the process of attack and defense has proved inadequate, The judge omits the lawsuit request and the law application error in three aspects, closely links the lawsuit function of the essential elements fact, makes the summary to the theory application situation in practice, discusses the gain and loss. The fourth chapter is the construction and perfection of the theory of essential facts and the procedure of collating points in our country. From the three problems reflected in the practical application of the third chapter, it is concluded that the crux of the problem lies in the negligence of the application of the above theory and the relevant loopholes in the judicial practice, that is, the lack of the collation procedure. The author starts from the outline of the dispute arrangement procedure, clarifies the important role of the procedure for the practical trial and the application of the above theory, examines the current legislation and judicial situation of our country, and takes the above theory as the starting point. Put forward the relevant suggestions to improve the process of collation of points.
【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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