论废弃判决之拘束力

On the Binding Force of Remand Judgment

赋予废弃判决拘束力,目的在于保护当事人及维护诉讼经济,此种拘束力系民事诉讼法为发回判决所特别规定。废弃判决之拘束力的客观范围限于否定原审判决且与撤销原判决有直接因果关系的法律见解及该法律见解的必要前提条件。重审法院及作出发回判决的法院均应受此拘束。在我国,发回裁定并不具有拘束上下级法院的效力,显有必要予以改进。

The Purpose of giving the remand judgment with binding force is to protect the parties and maintain litigation economy, such binding force is given by the special provisions of civil procedure law. The objective scope of the binding force is limited to the legal opinion that negates original judgment and has a direct causal relationship with revoke the.original judgment. Both of the retrial court and the court that makes the remand judgment should be bound. In China, the remand judgment does not have binding force, we need to improve.