请求权竞合时诉讼标的识别标准新思考

A New Attempt on Identifying the Discernment Criterion of the Object of Litigation on the Occasion of the Combination of Substantial Petition Rights

诉讼标的理论是民事诉讼法学的基础性理论之一,它具有两项根本性的价值:第一,确定法院审理的范围和双方当事人攻击、防御的对象、领域;第二,为既判力的产生确定范围。要充分实现这两项价值就必须明确界定诉讼标的的识别标准,并妥当地化解实体请求权的竞合给诉讼标的识别标准的界定所带来的危机,而这恰恰也是诉讼法学界有关诉讼标的理论的旷日持久的学术争论所要解决的一个核心性难题。要解决这一难题,必须以实体请求权的本质和民事诉讼的目的为出发点,将诉讼标的界定为特定自然事实主张之上的诉的声明的全部内容,以诉的声明作为诉讼标的的核心性识别标准,必要时辅以原告之自然事实主张。

The existence of the very theory concerned about the object of civil litigation, which is one of the fundamental theories of civil procedure law, has been of great value in the following two respects. Firstly, it should provide the guidelines for the judges as to define the scope of the lawsuits, as well as the target and the field of the claims battled or defended by one party against another party under the particular dispute. Secondly, it determines the territorial of Res judicada, where the valid judgment can be complied by the parties. In order to fully realize the above two items of value of the theory, it is of importance to efficiently clarify the discernment criterion of the object of litigation, and appropriately resolve the crisis of defining such criterion, raised by the result of the overlapping state among the substantial rights of civil petition. Meanwhile, such solution is happened to be the core challenge of the continuance academic argument on the theory of the object of civil litigation, which needs to be resolved necessarily in the area of the civil litigation procedure law. Resolving this core challenge problem, on the basis of the nature of the substantial rights of civil petition and the purpose of civil litigation, it needs to clarify the object of litigation as the whole content of the claim of litigation based on the claims of particular substantial natural fact, and regards the claim of litigation as the main discernment criterion of the object of litigation in the assistance of the claims of substantial natural fact by the plaintiff if necessarily. About this article, it starts from describing the source of the concept of object of litigation and the issues needed to settle to realize the value of object of litigation. Subsequently, the author analyzes the research state of the discernment criterion of object of litigation in some foreign countries. Lastly, the author comments the theory of object of litigation under China law. Meanwhile, the author analyzes the discernment issue of the object of litigation in new way when petition rights are combined.