诉讼标的之本土路径

Native Approach on Object of Action in Civil Procedure

美、德、日等国已在诉讼标的问题上作出了明确选择,而我国实务仍呈纷乱状态,至少有三条路径并存。既往的标的论低估了新、旧说之差异,高估了新说一次性解决纠纷之功效,诉讼标的相对论对新、旧说之折中并不合理。事件说在纠纷的一次性解决上最为彻底,而其缺陷其他诸说也有。国内法院普遍排斥竞合合并、预备合并,现行法苛待诉的变更,多数当事人系本人诉讼,故本土目前不具备采新说、事件说和相对论的条件,最高人民法院的新路径也不可采,只能采旧说。但应通过释明等措施尽力减少其负面效果,并朝新说乃至事件说努力。

It is very difficult to define the object of action, but it is not a question without answer. All the representative countries in both common law system and continent law system have made their def- inite choice about it. Our judicial practice is chaotic in this aspect. Many courts hold on the tradition- al route, but the Supreme Court deviate from the tradition in the EOS case and the Kunpeng case, and the opinion in those two cases are different from each other. This disorder should be ended. Continent law system has not noticed the transaction theory in the American law. According to the transaction theory, the plaintiff should present all the claims arising out of the same transaction. The transaction theory reminds us that, the difference between the old theory and the new one are not confined to their attitudes to the concurrent substantive rights. The new theory is not thoroughly in sol- ving the dispute once for all, for it cannot prevent the claimant from re-litigating on the different claim from the non-concurrent rights. The relative theory omits the benefit of the defendant and the rational use of judicial resources. Although the transaction theory is not perfect, its defect is common in all the theories. Our courts reject the alternative joinder of claims, and most of them also oppose the hypothetical joinder. Our Civil Procedural Law is strict with the amendment of complaint, the pretrial procedure cannot help parties to dig out facts sufficiently, the quality of judges is not high, and most of parties cannot hire lawyers. All these reality factors determine that we have no condition to adopt the transac- tion theory, the new theory or the relative one. It is the unique choice to adopt the old theory at pres- ent, but we should make efforts to adopt the new theory and the transaction theory in the future.