诉讼标的论的新视角——创设预备性合并制度的思考

A New Perspective on the Subject Matter of Action——The Creation of the System of Preliminary Merger

诉讼标的理论的各种学说试图解决两个问题:一是如何解决请求权竞合导致诉讼标的为复数的争论;二是把纠纷划分为较细较多的单位来分别处理,还是尽量把纠纷纳入一个较大的框架内予以一次性解决。通过对现有的诉讼标的学说评析,文章创设了预备性合并制度以解决各种诉讼标的理论有关请求权竞合的根本性缺陷;同时在对纠纷划分时,以最高人民法院《民事案件案由规定》为依据列出审理对象这一具有制度的划一性、透明性和实用性。

Various theories of subject matter of action are trying to solve two problems：the first is how to resolve the dispute of concurrence for the complex subject matter of action,second is the dispute is divided into smaller units were treated more or as far as possible into a larger dispute within the framework of a one-time solution.The creation of the system of preliminary merger will address various theories of the subject matter of action about the fundamental flaws of competing claims.At the same time when divided of the dispute,by the ＂Cause of Action Requirement＂ of supreme Court for the hearing objects has a uniform system,transparency and practicality