诉讼契约及其边界

Litigation Contract and Its Borders

既有关于诉讼契约的研究多局限于私法上契约自由与当事人意思自治原理,淡化了诉讼契约的公法属性。对于诉讼契约的理解,当建立在人权诉权理论、民事诉讼目的论、诉讼行为的相互性和程序效力等程序基本原理基础上。诉讼契约目的在于解决纠纷。这决定了契约的对象、是否涉及公益及生效依据上均不同于民事契约。诉权人权属性决定了其具有绝对性、不可放弃、不可剥夺性,只有法定裁判机关作出的生效裁判才能导致诉权的消耗。因此,不起诉契约属于民事契约,只发生私法上的效力;公证债权文书、调解协议的司法确认裁定均不能导致诉权消耗。撤回上诉和解协议等诉讼中契约效力不能遮蔽程序效力。认可诉讼契约效力应当坚持契约法定原则,明确当事人就任意事项达成诉讼契约需具备的程序条件。

Existing studies on litigation contract limited to the private law theory, such as the freedom of contract principle and the party autonomy. So that the public law property of the litigation contract is watered down. We must establish the understanding of the litigation contract on the the basis of fundamental principles such as action right theory, civil litigation teleology, mutuality of legal action and procedure effectiveness. Litigation contract aims to resolve the dispute, which determines it distinguished from civil contracts in the following areas ： the object of contract, whether it involved public interest and its legal effect basic. The right of action belongs to human rights. It is absolute and can not be given up. So only effective judgment made by the statutory authority can make the action right consumed. The contract of not to sue is a civil contract on private law, and has no legal effect of procedural law. Notary debt instruments and judicial rulings confirm the settlement agreement can not make the action right be consumed. Litigation contracts just like the agreement of withdraw the appeal can not negate the procedure effectiveness. The contractual effectiveness depends on the law. The procedure conditions must be clear to qualify the parties agreement on arbitrary matter of procedure.