论民事判决理由中判断之拘束力

On Binding Force of Reasons for Civil Judgments

我国民事立法对判决理由效力未作出规定,理论界对判决理由效力问题的研究零星而不成系统,从而导致司法实务中后诉法院对前诉判决、特别是对判决理由部分判定的争点问题认识不一,造成同案不同判或重复审理问题。文章尝试对国内外相关研究成果进行梳理、分析,认为民事判决理由部分的既判事实应有条件地具备争点排除效力,事实查明部分的事实、证据以及判决理由部分的非主要事实争点可以具备证据效力。除此,对于法律理由中的判决意见,时机成熟时可以使其具备判例效力,以期为构建有中国特色的判例制度铺路。

There are no relevant rules on the binding force of reasons for civil judgments in China, and only a few related academic research is available. As a result, it is difficult for the judges in the second sue to deal with the same issues decided in the first litigation, which may cause the different verdict in the same kind case or repeated trial. In this paper, the related research results both at home and a- broad are introduced, and some points are raised as follows： the issue preclusion rule should be ap- plied to the ultimate fact issues decided in the first reason of civil judgment; the evident fact issues and the non-main fact issues can be used as evidence by the parties in the second sue; the legal opinion in the first judgment can be regarded as precedent by stare decisis rule. The study is valuable for the de- velopment in this field in China.