指定特别诉讼代理人制度的实践理性

On the Practical Rationality of the Designated Representative System in the Civil Procedure

伴随着中国社会转型和家庭结构的变迁,民事诉讼中常出现无诉讼行为能力的当事人没有法定代理人,或者虽有法定代理人但却与之存在利益冲突的情况。为保护双方当事人利益,防止诉讼拖延,恢复1982年民事诉讼法中规定的指定诉讼代理制度已经势在必行。立法上,宜将指定诉讼代理人制度再做细化为指定特别诉讼代理人制度,使之成为由民事诉讼法调整的、临时的、例外的制度,对实体法规定的、常规性的法定代理人制度形成补充。在具体规则上,指定特别诉讼代理人制度既要满足一般案件的代理需要,也要满足身份关系诉讼中指定代理的特殊需要。

With the transformation of society and the changes of family structure in China, the phenomenon often occurred in the civil litigation that the parties no legal capacity have no representatives, or even though the parties have their representatives but there are some conflict of interest between them, so as to the representative is unable to exercise the representative rights. To protect the interests of both parties and prevent the proceeding delays, it＇ s imperative to restore the designated representative system that ever been specified in the 1982 Civil Procedure Law, and the designated representatives should be refined to be special legal representative of litigation, and making it to be a temporary exception system that subscribed by the civil procedure law, in order to complement the routine legal representative system that subscribed by the substantive law. And the designated representative rules should meet the general case requires, as well as to meet the special needs of the identity cases.