民事诉讼诚实信用原则的适用范围
发布时间：2019-05-10 09:18
【摘要】：诚实信用原则于2012年民事诉讼法修改中正式被确立,成为程序法与实体法相交融的共通原则。作为法律中的“帝王条款”,其在民事诉讼中所发挥的作用主要是惩治当事人滥用权利、进行虚假陈述和恶意损害他方利益等行为,防止法官实施突袭裁判和滥用自由裁量权,防止其他诉讼参与人实施有害诉讼公正的行为。新法实施一年多以来,出现了不少运用诚实信用原则作为判案依据的案例,但据笔者研究,理论界对于该如何具体适用诚实信用原则仍存在不小的争议,司法实践中对于这一原则能否适用于当事人以外的其他主体、能否适用于各类不同程序也存在疑问。理论研究的滞后以及相关配套法规的缺乏导致了实践中存在困惑,本文希望能推进诚实信用原则的适用范围的研究,为构建完善的诚实信用原则制度夯实基础,以期最终对审判实践能有所裨益。 本文主要采用比较分析法和实证分析法,将法学基础理论分析与具体审判实践中的情况相结合,尝试对诚实信用原则的主观范围和客观范围作出科学、合理的界定。 除引言与结语外,正文共分为五章,约三万六千字。第一章先对诚实信用原则的概念作出界定,以此引出诚实信用原则的适用范围这一概念。在明确相关概念之后,通过对已有立法例的比较分析,总结出诚实信用原则适用范围的一般规律,再结合分析现有理论研究成果,尝试对关于诚实信用原则适用范围的理论观点进行分类与归纳,了解当前的理论研究现状。 第二章探讨的是笔者界定诚实信用原则适用范围所需要用到的民事诉讼法基本理论,一是人性假设理论,不诚信行为突破立法者的人性假设基础有可能导致法律体系的坍塌；二是程序正义理论,不诚信行为易扭曲程序设计本意,阻碍程序公正实现；三是诉讼效益理论,不诚信行为普遍导致增加诉讼成本、浪费司法资源；四是诉讼模式理论,诚实信用的基本要求与一国的诉讼模式息息相关。 第三章是对诚实信用原则主观范围的相关理论进行界定,首先分别对单主体说、双主体说、多主体说的理论依据进行归纳,并指出当前理论研究的不足。同时,笔者尝试从法解释学、诚实信用原则的性质、约束法官的可能性等角度,结合第二章所涉及的相关理论,综合分析诚实信用原则的主观范围。 第四章则是对诚实信用原则客观范围的界定,笔者在此章中通过论证家事纠纷的特殊性并不能超越适用诚实信用原则给诉讼整体带来的益处,来反驳“区分具体领域适用说”；同时,具体结合人性假设、程序正义、诉讼效益及诉讼模式等理论,论证应在民事诉讼中全面适用诚实信用原则。 第五章主要是结合我国司法实证分析,通过权威数据、具体案例、媒体报道等佐证,表明我国司法实践中不诚信现象的严重性,并结合上文研究提出完善诚实信用原则适用范围的建议。
[Abstract]:The principle of good faith was formally established in the revision of civil procedure law in 2012, which has become a common principle of blending procedural law and substantive law. As the "imperial clause" in the law, its main role in civil litigation is to punish the abuse of rights of the parties, to make false statements and maliciously harm the interests of other parties, to prevent judges from carrying out raids on judges and abuse of discretion. To prevent other litigants from carrying out acts harmful to the fairness of litigation. Since the implementation of the new law for more than a year, there have been many cases in which the principle of good faith has been used as the basis for judging cases. However, according to the author's research, there is still a lot of controversy over how to apply the principle of good faith in the theoretical circle. In judicial practice, there are questions whether this principle can be applied to other subjects other than the parties, and whether it can be applied to all kinds of different procedures. The lag of theoretical research and the lack of relevant supporting laws and regulations lead to confusion in practice. This paper hopes to promote the study of the scope of application of the principle of good faith, so as to lay a solid foundation for the construction of a perfect system of the principle of good faith. In order to finally benefit the trial practice. This paper mainly uses comparative analysis and empirical analysis to combine the basic theory analysis of law with the situation in concrete trial practice, and tries to define the subjective and objective scope of the principle of good faith scientifically and reasonably. In addition to the introduction and conclusion, the main body is divided into five chapters, about 36000 words. The first chapter defines the concept of the principle of good faith, which leads to the concept of the scope of application of the principle of good faith. After defining the relevant concepts, through the comparative analysis of the existing legislative examples, this paper summarizes the general law of the scope of application of the principle of good faith, and then combines with the analysis of the existing theoretical research results. This paper attempts to classify and summarize the theoretical viewpoints on the scope of application of the principle of good faith, and to understand the present situation of theoretical research. The second chapter discusses the basic theory of civil procedure law that the author needs to define the scope of application of the principle of good faith. First, the theory of human nature hypothesis, dishonest behavior breaking through the basis of legislator's human nature hypothesis may lead to the collapse of the legal system; The second is the theory of procedural justice, which easily distorts the original intention of procedural design and hinders the realization of procedural justice. Third, the theory of procedural benefit, dishonest behavior generally leads to increased litigation costs and waste of judicial resources. Fourth, the theory of litigation mode, the basic requirements of good faith and a country's litigation mode is closely related. The third chapter defines the related theories of the subjective scope of the principle of good faith. First, it summarizes the theoretical basis of the single subject theory, the double subject theory and the multi subject theory, and points out the shortcomings of the current theoretical research. At the same time, the author attempts to comprehensively analyze the subjective scope of the principle of good faith from the perspective of legal hermeneutic, the nature of the principle of good faith and the possibility of restricting judges, combined with the relevant theories involved in the second chapter. The fourth chapter is the definition of the objective scope of the principle of good faith. In this chapter, the author argues that the particularity of family disputes can not exceed the benefits brought by the application of the principle of good faith to the whole litigation, to refute the theory of "distinguishing specific fields of application"; At the same time, combined with the hypothesis of human nature, procedural justice, litigation benefit and litigation mode, this paper demonstrates that the principle of good faith should be fully applied in civil litigation. The fifth chapter is mainly combined with the judicial empirical analysis of our country, through authoritative data, specific cases, media reports and other supporting evidence, shows the seriousness of the phenomenon of dishonesty in judicial practice in our country. Combined with the above research, this paper puts forward some suggestions to improve the scope of application of the principle of good faith.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2473536
[Abstract]:The principle of good faith was formally established in the revision of civil procedure law in 2012, which has become a common principle of blending procedural law and substantive law. As the "imperial clause" in the law, its main role in civil litigation is to punish the abuse of rights of the parties, to make false statements and maliciously harm the interests of other parties, to prevent judges from carrying out raids on judges and abuse of discretion. To prevent other litigants from carrying out acts harmful to the fairness of litigation. Since the implementation of the new law for more than a year, there have been many cases in which the principle of good faith has been used as the basis for judging cases. However, according to the author's research, there is still a lot of controversy over how to apply the principle of good faith in the theoretical circle. In judicial practice, there are questions whether this principle can be applied to other subjects other than the parties, and whether it can be applied to all kinds of different procedures. The lag of theoretical research and the lack of relevant supporting laws and regulations lead to confusion in practice. This paper hopes to promote the study of the scope of application of the principle of good faith, so as to lay a solid foundation for the construction of a perfect system of the principle of good faith. In order to finally benefit the trial practice. This paper mainly uses comparative analysis and empirical analysis to combine the basic theory analysis of law with the situation in concrete trial practice, and tries to define the subjective and objective scope of the principle of good faith scientifically and reasonably. In addition to the introduction and conclusion, the main body is divided into five chapters, about 36000 words. The first chapter defines the concept of the principle of good faith, which leads to the concept of the scope of application of the principle of good faith. After defining the relevant concepts, through the comparative analysis of the existing legislative examples, this paper summarizes the general law of the scope of application of the principle of good faith, and then combines with the analysis of the existing theoretical research results. This paper attempts to classify and summarize the theoretical viewpoints on the scope of application of the principle of good faith, and to understand the present situation of theoretical research. The second chapter discusses the basic theory of civil procedure law that the author needs to define the scope of application of the principle of good faith. First, the theory of human nature hypothesis, dishonest behavior breaking through the basis of legislator's human nature hypothesis may lead to the collapse of the legal system; The second is the theory of procedural justice, which easily distorts the original intention of procedural design and hinders the realization of procedural justice. Third, the theory of procedural benefit, dishonest behavior generally leads to increased litigation costs and waste of judicial resources. Fourth, the theory of litigation mode, the basic requirements of good faith and a country's litigation mode is closely related. The third chapter defines the related theories of the subjective scope of the principle of good faith. First, it summarizes the theoretical basis of the single subject theory, the double subject theory and the multi subject theory, and points out the shortcomings of the current theoretical research. At the same time, the author attempts to comprehensively analyze the subjective scope of the principle of good faith from the perspective of legal hermeneutic, the nature of the principle of good faith and the possibility of restricting judges, combined with the relevant theories involved in the second chapter. The fourth chapter is the definition of the objective scope of the principle of good faith. In this chapter, the author argues that the particularity of family disputes can not exceed the benefits brought by the application of the principle of good faith to the whole litigation, to refute the theory of "distinguishing specific fields of application"; At the same time, combined with the hypothesis of human nature, procedural justice, litigation benefit and litigation mode, this paper demonstrates that the principle of good faith should be fully applied in civil litigation. The fifth chapter is mainly combined with the judicial empirical analysis of our country, through authoritative data, specific cases, media reports and other supporting evidence, shows the seriousness of the phenomenon of dishonesty in judicial practice in our country. Combined with the above research, this paper puts forward some suggestions to improve the scope of application of the principle of good faith.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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