论我国民事拘传制度的完善
发布时间：2019-04-23 21:37
【摘要】：拘传是我国民事诉讼中的强制措施之一,然而,由于其在制度上的不够完善,导致在审判实务中,该制度往往起不到应有的作用,民事诉讼的目的无法实现。本文从一则法律案例出发,指出在实践中,某些民事案件里已经委托诉讼代理人的当事人本人、原告和必要共同诉讼中的部分当事人等也是必要到庭的主体,因为其无正当理由拒不出庭,致使诉讼中断,无论按撤诉处理还是缺席审判,都无法顺利解决纠纷。本文针对我国拘传制度的现状,对它的实用性和可操作性进行了审视,提出拘传制度的缺陷。然后参考了国内外一些科学合理的做法,再结合我国的基本实情,提出了解决这些问题的措施,并从法理上进行分析和论证这些方式的可行性。全文的主要内容有： 引言部分采用了一个司法实务中的案例。案例中的情况反应了现实与法律制度之间的一个矛盾,即仅仅对必须到庭的被告进行拘传,无法化解民事诉讼中的所有问题和矛盾,拘传制度的价值也没有得以完全实现。由此,引发了笔者对拘传制度适用主体的思考。 第一章是从我国民事诉讼法中对拘传制度的规定的基础上,分析了拘传制度的缺陷。即适用的主体仅仅包括被告和某些法定代理人,范围过于狭窄,以及拘传以“二次传唤”为前提,理念不合理。 第二章提出了对扩大拘传适用对象的建议。第一,拘传也应适用于部分已委托诉讼代理人的当事人本人。第二,必要共同诉讼中,对部分不到庭的当事人也应适用拘传。第三,拘传对原告也应适用。 第三章则从拘传适用的程序角度提出了一些操作上的建议。比如,设置拘传适用条件和程序,拘传场所应根据办案需要进行指定,设立拘传的例外排除情形,增设民事执行中拘传的法定事由,利用社会效应营造氛围,促进诉讼价值的实现等等。 第四章衔接了撤诉和缺席判决与拘传制度,同时也印证了完善拘传制度的合理性。原告撤诉应考虑被告意见,某些案件中,缺席审判可能损害对方当事人的审级利益。总之,只有科学衔接,才能真正实现诉讼价值。
[Abstract]:Criminal transmission is one of the compulsory measures in civil litigation in our country. However, due to its imperfection in the system, the system often fails to play its due role in trial practice, and the purpose of civil action cannot be realized. Starting from a legal case, this paper points out that in practice, in some civil cases, the litigants who have entrusted the litigant agents themselves, plaintiff and some parties in the necessary joint litigation are also the necessary subjects to appear in court. Because it refuses to appear in court without proper reason, the lawsuit is interrupted, no matter whether it is handled by withdrawal or trial in absentia, it is impossible to settle the dispute smoothly. In view of the present situation of our country's criminal transmission system, this paper examines its practicability and maneuverability, and puts forward the defects of the system. Then referring to some scientific and reasonable practices at home and abroad, combined with the basic facts of our country, the measures to solve these problems are put forward, and the feasibility of these methods is analyzed and demonstrated from the point of view of jurisprudence. The main contents of this paper are as follows: the introduction adopts a case in judicial practice. The situation in the case reflects a contradiction between reality and the legal system, that is, defendant, who must be present in court, cannot resolve all the problems and contradictions in civil proceedings, and the value of the system has not been fully realized. As a result, the author started to think about the subject of the criminal transmission system. The first chapter analyzes the defects of the criminal transmission system on the basis of the stipulation of the criminal transmission system in the civil procedure law of our country. That is to say, the applicable subject only includes defendant and some legal representatives, the scope is too narrow, as well as the premise of "second summons", the idea is unreasonable. In the second chapter, the author puts forward some suggestions on the extension of the subject of detention. First, the affidavit should also apply to some of the parties who have entrusted the litigants themselves. Second, in the necessary joint action, the parties who do not appear in court should also be subject to criminal summons. Third, the preaching should also apply to plaintiff. In the third chapter, some operational suggestions are put forward from the angle of procedure. For example, to set up conditions and procedures for the application of detention, places of detention should be designated according to the needs of handling cases, exceptional circumstances should be set up, legal reasons for detention in civil execution should be added, and social effects should be used to create an atmosphere. Promote the realization of litigation value and so on. The fourth chapter converges the system of withdrawal and judgment by default, and proves the rationality of perfecting the system at the same time. Plaintiff should take defendant's opinion into consideration. In some cases, trial in absentia may harm the interests of the other party at the trial level. In short, only scientific cohesion, can truly realize the value of litigation.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2463818
[Abstract]:Criminal transmission is one of the compulsory measures in civil litigation in our country. However, due to its imperfection in the system, the system often fails to play its due role in trial practice, and the purpose of civil action cannot be realized. Starting from a legal case, this paper points out that in practice, in some civil cases, the litigants who have entrusted the litigant agents themselves, plaintiff and some parties in the necessary joint litigation are also the necessary subjects to appear in court. Because it refuses to appear in court without proper reason, the lawsuit is interrupted, no matter whether it is handled by withdrawal or trial in absentia, it is impossible to settle the dispute smoothly. In view of the present situation of our country's criminal transmission system, this paper examines its practicability and maneuverability, and puts forward the defects of the system. Then referring to some scientific and reasonable practices at home and abroad, combined with the basic facts of our country, the measures to solve these problems are put forward, and the feasibility of these methods is analyzed and demonstrated from the point of view of jurisprudence. The main contents of this paper are as follows: the introduction adopts a case in judicial practice. The situation in the case reflects a contradiction between reality and the legal system, that is, defendant, who must be present in court, cannot resolve all the problems and contradictions in civil proceedings, and the value of the system has not been fully realized. As a result, the author started to think about the subject of the criminal transmission system. The first chapter analyzes the defects of the criminal transmission system on the basis of the stipulation of the criminal transmission system in the civil procedure law of our country. That is to say, the applicable subject only includes defendant and some legal representatives, the scope is too narrow, as well as the premise of "second summons", the idea is unreasonable. In the second chapter, the author puts forward some suggestions on the extension of the subject of detention. First, the affidavit should also apply to some of the parties who have entrusted the litigants themselves. Second, in the necessary joint action, the parties who do not appear in court should also be subject to criminal summons. Third, the preaching should also apply to plaintiff. In the third chapter, some operational suggestions are put forward from the angle of procedure. For example, to set up conditions and procedures for the application of detention, places of detention should be designated according to the needs of handling cases, exceptional circumstances should be set up, legal reasons for detention in civil execution should be added, and social effects should be used to create an atmosphere. Promote the realization of litigation value and so on. The fourth chapter converges the system of withdrawal and judgment by default, and proves the rationality of perfecting the system at the same time. Plaintiff should take defendant's opinion into consideration. In some cases, trial in absentia may harm the interests of the other party at the trial level. In short, only scientific cohesion, can truly realize the value of litigation.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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