论诉状内容变更申请之合理司法应对
发布时间：2018-12-20 11:09
【摘要】：原告若在诉讼中提出意欲改变诉状中列明的"诉讼请求和事实、理由",法官应予妥善应对。立法与司法解释相关规定未能给予法官有效指引;实务界的处置未尽一致;相关学术探讨受外国概念和理论羁绊。关于应宽待诉的变更、特定情形下不允许诉的变更的理论结论虽可堪接受,但解释力和说服力不足。对于诉讼具有决定性作用的是原告的诉讼目的。因此,以原告诉讼目的变动程度为依据重新进行类型化整理是认识和解决问题的较好方法。对于绝大多数变更申请应予同意,因为诉讼本应具备对原告诉讼目的变动的一定包容力。对于原告诉讼根本目的发生替换的变更申请则不应同意。决定是否同意变更申请的根本原因在于诉讼法上的价值选择而非出于诉讼经济或者平衡双方利益的考虑。案情陈述和原告诉讼目的是手段与目的的关系。案情陈述根本变化与原告诉讼根本目的替换是外在表征与内在根据的关系。既然变更申请并非一律会被允许,那么传统上认为的"法官可以泛泛允许变更申请"或者"法官可以先同意申请嗣后再了解申请的具体内容"的看法即不能成立。
[Abstract]:If the plaintiff wishes to change the "claim and fact, reason" listed in the petition, the judge shall respond appropriately. The relevant provisions of legislation and judicial interpretation fail to give effective guidance to judges; the disposal of practical circles is not completely consistent; the relevant academic discussions are restricted by foreign concepts and theories. The theoretical conclusion that the change should be appealable is acceptable, but the explanation and persuasion are not enough. What is decisive for the action is the purpose of the plaintiff's action. Therefore, it is a better way to recognize and solve the problem by reclassifying the plaintiff's purpose. For most change applications, consent should be granted, as the action should have some tolerance for changes in the plaintiff's purpose. A change application for the underlying purpose of the plaintiff's action shall not be agreed to. The fundamental reason for deciding whether to agree to the application for change lies in the value choice of procedural law rather than the consideration of litigation economy or balancing the interests of both parties. The statement of case and the purpose of the plaintiff's action are the relationship between the means and the end. The fundamental change of the case statement and the fundamental purpose substitution of the plaintiff action are the relations between the external representation and the internal basis. Since an application for change is not always allowed, the conventional view that "the judge can generally allow the application for change" or "the judge can agree to the application later before understanding the specific content of the application" cannot hold.
【作者单位】： 南京师范大学;
【基金】：博士后国际交流计划资助
【分类号】：D925.1
，
本文编号：2387913
[Abstract]:If the plaintiff wishes to change the "claim and fact, reason" listed in the petition, the judge shall respond appropriately. The relevant provisions of legislation and judicial interpretation fail to give effective guidance to judges; the disposal of practical circles is not completely consistent; the relevant academic discussions are restricted by foreign concepts and theories. The theoretical conclusion that the change should be appealable is acceptable, but the explanation and persuasion are not enough. What is decisive for the action is the purpose of the plaintiff's action. Therefore, it is a better way to recognize and solve the problem by reclassifying the plaintiff's purpose. For most change applications, consent should be granted, as the action should have some tolerance for changes in the plaintiff's purpose. A change application for the underlying purpose of the plaintiff's action shall not be agreed to. The fundamental reason for deciding whether to agree to the application for change lies in the value choice of procedural law rather than the consideration of litigation economy or balancing the interests of both parties. The statement of case and the purpose of the plaintiff's action are the relationship between the means and the end. The fundamental change of the case statement and the fundamental purpose substitution of the plaintiff action are the relations between the external representation and the internal basis. Since an application for change is not always allowed, the conventional view that "the judge can generally allow the application for change" or "the judge can agree to the application later before understanding the specific content of the application" cannot hold.
【作者单位】： 南京师范大学;
【基金】：博士后国际交流计划资助
【分类号】：D925.1
，
本文编号：2387913
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