民事预备合并之诉研究
发布时间：2019-02-26 21:05
【摘要】：有关民事预备合并之诉的研究在我国的民事诉讼领域尚不十分广泛,一部分民事法学研究者认为民事预备合并之诉只是一个纯理论性问题,其在现阶段我国的司法实践中可操作性也并不强,所以对于其有关注和探讨并不多见,周而复始,民事预备合并之诉似乎就被束之高阁,鲜有人会对其做比较系统的研究。但在德国、日本以及我国台湾地区的民事诉讼研究中以及民事司法裁判中都能看见民事预备合并之诉的探讨和运用,究其原因,可以归结为民事预备合并之诉对于民事诉讼的深刻影响和重大意义。从理论层面来说,民事预备合并之诉是符合民事诉讼法的内在精神和基本原则的,对于诉讼主体或者是诉讼标的的合并能够充分体现民事诉讼的处分原则和当事人的程序选择权。从司法实践的角度来说,民事预备合并之诉的合理规范运用一方面能够解决已经在我国民事诉讼案件中存在的一些不能简单的归类为共同诉讼的问题,另一方面从宏观角度概括预备合并之诉也具有提高诉讼效率、实现诉讼经济和维护司法裁判的统一的积极作用。基于民事预备合并之诉的合法性以及重要意义,又考虑到我国民事诉讼领域的不断改革和制度完善,本文立足于民事预备合并之诉的理论基础,对于预备合并之诉的研究论述从其概念和性质界定入手,并且把预备合并之诉放在民事诉讼中诉的合并这一部分进行分析说明,明确其中的主观预备合并之诉和客观预备合并之诉与共同诉讼之间的关系,分析出主观预备合并之诉实际上在我国的司法实践中是极有可能已经存在的,只是在法律层面和理论层面不曾被认可。阐述了与民事预备合并之诉相关的诉讼标的理论、请求权竞合问题以及诉权理论与预备合并之诉的重要关系,结合相关理论中对于预备合并之诉的分类,综合我国台湾地区和德日民事诉讼中对于民事预备合并之诉的研究理论,分别对主观预备合并之诉和客观预备合并之诉进行了论述,从民事诉讼的目的、基本原则、民事司法实践的诉讼效率以及主观预备合并之诉和客观预备合并之诉在民事司法实践中的可利用性价值等角度分析了预备合并之诉的合法性、意义以及由不同诉讼标的理论而对民事预备合并之诉产生的多方面多层次的影响,力图对包括民事预备合并之诉的提出问题、管辖问题、上诉问题以及预备合并之诉中主位之诉与备位之诉之间的关系等一些有争议而在民事预备合并之诉的研究中又必须明确的问题阐述了自己的认识,以期能对我国的民事预备合并之诉的深入研究有所启发。
[Abstract]:The research on the litigation of civil preparatory merger is not very extensive in the field of civil litigation in our country. Some civil law researchers think that the litigation of civil preparatory merger is only a purely theoretical problem. Its maneuverability is also not strong in the judicial practice of our country at the present stage, so there is little attention and discussion about it. From time to time, the lawsuit of civil preparatory merger seems to be abandoned, and few people will do more systematic research on it. However, in Germany, Japan and Taiwan, we can see the exploration and application of civil preparatory merger in the study of civil litigation and civil judicial adjudication. It can be summed up as the profound influence and great significance of the suit of civil preparatory merger to the civil litigation. Theoretically speaking, the lawsuit of civil preparatory merger is in line with the inherent spirit and basic principles of the civil procedure law. The combination of the subject of action or the object of action can fully reflect the principle of disciplinary action and the right to choose the procedure of the parties. From the point of view of judicial practice, on the one hand, the rational and normative application of civil preparatory merger can solve some problems that can not be simply classified as joint litigation in civil litigation cases in our country. On the other hand, it can improve the efficiency of litigation, realize the economy of litigation and maintain the unity of judicial judgment. Based on the legitimacy and significance of the litigation of civil preparatory merger, and considering the continuous reform and perfection of the system in the field of civil litigation in our country, this paper is based on the theoretical basis of the litigation of civil preparatory merger. On the basis of the definition of the concept and nature of the lawsuit of the preparatory merger, the author analyzes and explains the part of the action of the preparatory merger in the part of the amalgamation of the civil action. This paper clarifies the relationship between the subjective preparatory merger and the objective preparatory merger and the joint litigation, and analyzes that the subjective preparatory merger is very likely to exist in the judicial practice of our country. Only in the legal and theoretical level has not been recognized. This paper expounds the theory of litigant object, the issue of competing claim and the important relationship between the theory of right of action and the lawsuit of preparatory merger, combining with the classification of the lawsuit of preparatory merger in the related theory. Based on the research theory of civil preparatory merger in Taiwan and Germany-Japan civil litigation, this paper discusses the subjective preparatory merger and the objective preparatory merger respectively, from the point of view of the purpose and the basic principle of civil litigation. The efficiency of litigation in civil judicial practice and the available value of subjective preparatory merger and objective preparatory merger in civil judicial practice are analyzed in this paper. The significance and the multi-level influence of different theories of litigation object on the lawsuit of civil preparatory merger try to raise the questions and jurisdictional problems of the litigation of civil preparatory merger, and try hard to put forward the question of the lawsuit of civil preparatory merger, and try to put forward the problem of jurisdiction. Some controversial issues, such as the relationship between the subject suit and the reserve lawsuit in the litigation of the preparatory merger, and so on, which must be made clear in the study of the litigation of the civil preparatory merger, have expounded their own understanding. In order to enlighten the in-depth study of the civil preparatory merger in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.1
本文编号：2431143
[Abstract]:The research on the litigation of civil preparatory merger is not very extensive in the field of civil litigation in our country. Some civil law researchers think that the litigation of civil preparatory merger is only a purely theoretical problem. Its maneuverability is also not strong in the judicial practice of our country at the present stage, so there is little attention and discussion about it. From time to time, the lawsuit of civil preparatory merger seems to be abandoned, and few people will do more systematic research on it. However, in Germany, Japan and Taiwan, we can see the exploration and application of civil preparatory merger in the study of civil litigation and civil judicial adjudication. It can be summed up as the profound influence and great significance of the suit of civil preparatory merger to the civil litigation. Theoretically speaking, the lawsuit of civil preparatory merger is in line with the inherent spirit and basic principles of the civil procedure law. The combination of the subject of action or the object of action can fully reflect the principle of disciplinary action and the right to choose the procedure of the parties. From the point of view of judicial practice, on the one hand, the rational and normative application of civil preparatory merger can solve some problems that can not be simply classified as joint litigation in civil litigation cases in our country. On the other hand, it can improve the efficiency of litigation, realize the economy of litigation and maintain the unity of judicial judgment. Based on the legitimacy and significance of the litigation of civil preparatory merger, and considering the continuous reform and perfection of the system in the field of civil litigation in our country, this paper is based on the theoretical basis of the litigation of civil preparatory merger. On the basis of the definition of the concept and nature of the lawsuit of the preparatory merger, the author analyzes and explains the part of the action of the preparatory merger in the part of the amalgamation of the civil action. This paper clarifies the relationship between the subjective preparatory merger and the objective preparatory merger and the joint litigation, and analyzes that the subjective preparatory merger is very likely to exist in the judicial practice of our country. Only in the legal and theoretical level has not been recognized. This paper expounds the theory of litigant object, the issue of competing claim and the important relationship between the theory of right of action and the lawsuit of preparatory merger, combining with the classification of the lawsuit of preparatory merger in the related theory. Based on the research theory of civil preparatory merger in Taiwan and Germany-Japan civil litigation, this paper discusses the subjective preparatory merger and the objective preparatory merger respectively, from the point of view of the purpose and the basic principle of civil litigation. The efficiency of litigation in civil judicial practice and the available value of subjective preparatory merger and objective preparatory merger in civil judicial practice are analyzed in this paper. The significance and the multi-level influence of different theories of litigation object on the lawsuit of civil preparatory merger try to raise the questions and jurisdictional problems of the litigation of civil preparatory merger, and try hard to put forward the question of the lawsuit of civil preparatory merger, and try to put forward the problem of jurisdiction. Some controversial issues, such as the relationship between the subject suit and the reserve lawsuit in the litigation of the preparatory merger, and so on, which must be made clear in the study of the litigation of the civil preparatory merger, have expounded their own understanding. In order to enlighten the in-depth study of the civil preparatory merger in our country.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.1
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