论我国民事判决已决事实的预决效力

发布时间：2019-03-28 20:02

【摘要】：已决事实，是指已为人民法院生效判决所确认的事实。已决事实的效力，属于判决效力的范畴，赋予已决事实预决效力本应受到各方面的尊重和维护。现行民事诉讼法对“已决事实”没有做出明文规定，只在相关司法解释中对已决事实作了规定，该规定原则和抽象，很难为司法实务提供指导和为理论研究提供范本；在学界，学者基于既判力理论、证据法理论、司法认知理论等从既判力、争点效、中间判决、司法认知、“公文书”较高的证明力角度形成了不同的理论构架，这些理论很难说是处理我国已决事实问题的最佳进路；在司法实践中，法官基于不同的法律思维和逻辑，赋予已决事实不同的属性定位、效力、救济措施，这其中还没有形成统一的处理之道。该制度这种在理论上的分歧和司法实践上处理方法的不统一的现状，显然不利于该问题的解决和维护诉讼的纠纷解决机能。基于我国法治传统和现有成文法规定，本文主张对已决事实的属性、范围、效力作出清晰的规定，并完善相关配套措施，形成一条符合我国司法实践的立法路径，实现已决事实本有的价值和功能。本文第一部分为引言即问题的提出部分，根据传统民事诉讼理论，除抵消抗辩外，既判力客观范围限于判决主文部分，但这并不意味着判决理由不具有任何判决效力。以司法判决为依托作出的事实认定，属于判决效力的组成部分，本应受到各方面的重视。但是，在学界，学者基于不同的理论依据为已决事实寻找了不同的解决策略，理论研究的分歧很难对已决事实制度在同一层面进行探讨；司法解释的原则和抽象，给人的印象是我国并没有建立真正的已决事实制度；在司法实践中，法官基于不同的法律思维，对已决事实问题的解决还存在着不统一的处理之道。第二部分从我国民事判决已决事实预决效力制度的现状出发，分别从立法及司法解释、司法实践、现有理论研究层面来考察。立法的原则和抽象，很难为已决事实制度的适用提供可操作性的立法规范；在实务界，法官基于不同的法律逻辑和思维，对已决事实的处理存在着不统一的法律解释适用；在理论研究上，学者们基于不同的视角对已决事实制度的理论构架，还存在分歧。已决事实的效力来源于判决效力，本应受到各方面的尊重和维护，但这种理论上存在分歧和司法实践上处理方法的不统一的现状，显然不利于该问题的解决和实现该制度的价值和功能。第三部分是对我国民事判决已决事实制度研究的必要性和可行性分析，首先，基于诉讼效率、法的安定性、诉讼的纠纷解决机能、职权主义诉讼模式的修正的分析，论述完善我国民事判决已决事实制度是必要的；然后，基于预决效力的相对性、程序保障和自我责任的结果、法律真实的追求、处分原则诉讼价值理念，得出对我国民事判决已决事实的制度的构建是可行的。第四部分是对现有解决已决事实效力问题的制度理论进行比较与评析，分别从“争点效”理论、争点排除规则、中间判决制度、司法认知理论、赋予“公文书”较高的证明力理论的现有研究中对处理已决事实问题的方法进行评析得出，这些制度的范围、效力和立法本意并非与已决事实制度的本质特征相吻合，若适用于已决事实制度则存在着制度障碍。第五部分基于以上分析笔者尝试着提出对我国已决事实制度完善的建议。首先，从民事判决已决事实预决效力的一般法理分析，具体界定了我国民事判决已决事实的具体范围、预决效力的性质和属性。根据判决书的结构体例，事实认定出现在判决理由部分，已决事实客观范围应界定为判决理由部分认定的事实，以区别于既判力客观范围；对已决事实的效力进行分析，主张已决事实具有相对的预决效力，当后诉中有相反证据时，允许当事人再次争议，法院可以再次认定；其次，立足于现有司法解释规定，从立法层面对范围、效力明确界定，以为司法实践提供可操作性的准则；最后，在现有立法体系中，，完善与已决事实相关的配套措施的规定，提高法官职业水平和能力，规范判决文书写作，加强法官的释明义务方面为已决事实制度提供人员及技术保障。
[Abstract]:The facts that have been determined are the facts that have been confirmed for the effective judgment of the people's court. The validity of the determined facts, which belongs to the category of the effect of the judgment, gives the pre-determined effect of the determined facts to be respected and maintained in all respects. In that present civil procedure law, there is no express provision on the "the fact that it has been determined", and only in the relevant judicial interpretation, the facts have been set, which is difficult to provide guidance for the judicial practice and provide a model for theoretical research; in the academic field, the scholars are based on the theory of the judgment force and the theory of evidence law. The theory of judicial cognition has formed a different theoretical framework from the angle of the proof force, the point-of-point effect, the middle sentence, the judicial cognition and the higher "public instrument", which is hard to say is the best way to deal with the fact problem in our country; in the judicial practice, On the basis of different legal thinking and logic, the judge has given different attribute positions, effects and relief measures according to different facts, which has not formed a unified approach. This system, which is in theory and the non-uniform current situation of the method in the judicial practice, is obviously not conducive to the solution of the problem and the dispute resolution function in the maintenance of the lawsuit. Based on the tradition of the rule of law in our country and the provisions of the existing statutory law, this paper is to make clear provisions on the attributes, scope and effect of the facts, and to perfect the relevant supporting measures to form a legislative path that is in line with the judicial practice of our country and to realize the value and function of the fact. The first part of this paper is the introduction to the question. According to the traditional theory of civil action, in addition to the counterbalancing, the objective scope of the judgment is limited to the main part of the judgment, but this does not mean that the judgment reason does not have any judgment effect. The fact that the judicial decision is based on the judgment of the judicial decision is an integral part of the effectiveness of the sentence and should have been weighed by the various aspects. However, in the academic field, the scholars have found different solution strategies based on different theoretical bases, and the differences in the theoretical research are difficult to probe into the fact system at the same level; the principle and the evacuation of the judicial interpretation In the judicial practice, the judge is based on different legal thinking, and the solution to the question of the fact is not unified. The second part, from the current situation of the system of the pre-determination of the fact of the civil judgment in our country, from the legislative and judicial explanation, the judicial practice, the existing theoretical research level, The principle and the abstract of the legislation makes it difficult to provide the applicable legislative norm for the application of the factual system; in the practical world, the judge is based on the different legal logic and the thinking, and there is a non-uniform legal interpretation for the processing of the determined facts; in theory In this study, the scholars based on different perspectives on the theoretical framework of the factual system, and also The validity of the determined facts is derived from the effect of the judgment, which should have been respected and maintained in all respects, but there are differences in the theory and the non-uniform current situation of the processing methods in the judicial practice, which is obviously not conducive to the solution of the problem and the value of the system. The third part is the necessity and feasibility of the research on the fact system of the civil judgment in our country, first, on the basis of the litigation efficiency, the stability of the law, the dispute resolution function of the lawsuit, the power-based litigation mode On the basis of the relativity of the pre-determined effect, the result of the procedure guarantee and the self-responsibility, the real pursuit of the law and the principle of punishment, the analysis of the correction is necessary. The concept of the value of the lawsuit and the structure of the system for judging the facts of the civil judgment in our country The fourth part is to compare and analyze the system theory of the existing problem of the effect of the fact, from the "point-to-point effect" theory, the point of struggle and the middle decision system, respectively. The scope, effect and legislative meaning of these systems are not in agreement with the essential characteristics of the established fact system. The fifth part is based on the above analysis, and the author tries to make a decision to our country On the basis of the general legal analysis of the fact that the civil judgment has been determined, the specific scope of the facts of the civil judgment in our country is defined. The nature and attributes of the decision-making. According to the structure of the judgment, the fact is found to be in the case of the judgment. The objective scope of the factual facts should be defined as the fact of the determination of the reason for the judgment, in order to distinguish between the objective scope of the judgment and the effect of the determined fact, and the fact that the facts have been determined With respect to the pre-determined effect, when there is the opposite evidence in the post-litigation, the party is allowed to settle the dispute again, the court can confirm again; secondly, based on the provisions of the existing judicial interpretation, the scope and effect are clearly defined from the legislative level, and the operability of the judicial practice is provided; and finally, In the existing legislative system, the provisions of the supporting measures related to the established facts are improved, the professional level and the ability of the judge are improved, the writing of the judgment documents is regulated, and the judicial system of the judge is strengthened.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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