分割共有物诉讼之研究

发布时间：2018-10-19 18:08

【摘要】：分割共有物诉讼是一种特殊类型的诉讼,因此在适用民事诉讼基本理论时与普通民事诉讼类型有所差别,而目前我国理论上鲜有对该诉讼类型的研究,且在实务中对该诉讼类型的关注也主要集中在实体方面。本文则从诉讼法的角度对分割共有物诉讼进行研究,以旧实体法学说为指导,以诉讼客体(即诉讼标的)为切入点,对该诉讼类型的特殊性进行考察。本文通过四个部分对分割共有物诉讼进行考察:第一部分,研析分割共有物诉讼的基本法理。首先从共有法律关系入手,阐明共有法律关系的内容,而后通过考察德、日法上的分割共有物法律关系,并基于我国现有法律规定对分割共有物法律关系进行分析;其次,对实体法上的分割共有物请求权的性质进行考察分析,得出其为一种特殊类型(要件欠缺)的形成权,并藉此过渡到对分割共有物诉讼性质及其诉讼标的考察。也呈现出本文的指导理论,即旧实体法学说的诉讼标的理论,并将其运用于研析该诉讼的审理及判决效力的特殊性中。第二部分,该部分以诉讼客体为视角对分割共有物诉讼审理的具体问题进行论述并提出建议。主要对诉讼请求、诉的客观合并两个方面的问题进行阐述;在贯彻处分主义的民事诉讼中,诉讼请求等同于诉讼标的,而在我国处分原则内容受限、缺失的情况下,混淆诉讼请求和诉讼标的的关系也就不足为奇,加之分割共有物诉讼中审理对象包括是否分割和定分割方法,后者易生突袭裁判,对当事人权利保障不利;而在诉的客观合并中,因为对其基础理论和立法不完善,进一步造成在分割共有物审理中突袭裁判、诉外裁判等问题;结合司法实务案例提出建议。此外,因诉讼审理对象具有特殊性,还生诉讼法理和非讼法理交错适用、辩论主义和职权主义交错适用的问题。第三部分,言明分割共有物诉讼判决效力之法理并评析。考察该诉讼判决既判力及执行力的法理,阐述我国法律效力制度的问题。以诉讼请求、争议对象、审判对象与既判力、执行力的客观范围的一致性为前提,详述分割共有物诉讼判决既判力的特殊性;关于执行力问题,主要对其是否有执行力以及执行中的具体问题进行分析,并提出建议。第四部分,结语。分割共有物请求权的性质,即要件欠缺的形成权;分割共有物诉讼的性质,即形式的形成之诉;诉讼标的则包括分割共有物请求权和定分割方法。在全文保持理论一致性的同时,谈及实务问题;此外还对本文写作中的不足作简要阐释。
[Abstract]:As a special type of litigation, the division of joint property litigation is different from that of ordinary civil action when it is applied to the basic theory of civil action. However, there is little research on the type of action in our country at present. And in practice, the focus on the type of litigation is also focused on the substantive aspects. From the point of view of procedural law, this paper studies the division of common property litigation, taking the old substantive law theory as the guidance and the object of litigation (that is, the object of the lawsuit) as the starting point to investigate the particularity of the litigation type. In this paper, the division of common property litigation through four parts to investigate: the first part, analyze the division of common property litigation of the basic legal principles. First of all, it clarifies the content of mutual legal relationship from the perspective of mutual legal relationship, and then analyzes the legal relationship of partitioned common property based on the existing legal provisions of our country by examining the legal relationship of divided common property in Germany and Japan. Based on the investigation and analysis of the nature of the claim for division of common things in substantive law, it is obtained that it is a kind of formation right of special type (lacking of important elements), and by this means it is transferred to the investigation of the nature of litigation and the object of action of the division of common property. It also presents the guiding theory of this article, that is, the theory of the object of action of the old substantive law theory, and applies it to analyze the particularity of the trial of the lawsuit and the validity of the judgment. In the second part, from the angle of object of litigation, the author discusses and puts forward some suggestions. It mainly expounds the two aspects of litigation request and objective merger of action. In the civil action of implementing disposition doctrine, the litigation request is equal to the object of the action, but in the case of the limitation of the content of the principle of disposition in our country, and the absence of the principle of disposition, It is not surprising to confuse the relationship between the litigation request and the object of the action. In addition, the trial object in the division of common property litigation includes whether to divide the object and the fixed division method. The latter is prone to raid the judge, which is disadvantageous to the protection of the parties' rights. In the objective combination of litigation, because of its basic theory and legislation is not perfect, resulting in further in the division of common property in the trial of surprise adjudication, external adjudication and other issues; combined with the judicial practice of the case to put forward suggestions. In addition, due to the particularity of the object of trial, there are also the problems of interlaced application of procedural and non-litigative legal principles, and cross-application of argumentalism and functionalism. The third part describes the legal theory and comments on the validity of the judgment in the division of common property litigation. The legal principle of the res judicata and execution of the litigation judgment is investigated, and the legal effect system of our country is expounded. On the premise of the consistency of litigation request, object of dispute, object of trial and objective scope of res judicata and execution, the particularity of judgment res judicata of division of common things is described. It mainly analyzes whether it has executive power and the specific problems in implementation, and puts forward some suggestions. The fourth part, conclusion. The nature of the claim of partitioning common things, that is, the right of formation lacking in the elements; the nature of the action of division of common things, that is, the formative action of the form; the object of the litigation includes the claim of the division of the common property and the method of definite division. While maintaining the theoretical consistency, the thesis also discusses the practical problems and briefly explains the shortcomings of this thesis.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.1

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