实体法与程序法交互作用下的共有物分割之诉

Lawsuits about the Division of Co-owned Property from the Interactive Perspective of Substantive and Procedural Law

在共有物分割之诉中,实体法与程序法呈现出明显的交互关系。一是围绕共有物分割滋生的实体权利义务争议涉及诸多事项,基于实体权利义务的一体性,应对争议事项做一揽子解决。这就导致共有物分割之诉突破了程序法的诉讼类型区分,囊括了确认之诉、形成之诉与给付之诉等多重内容。二是实体法上关于裁判分割方法的确定,具有明显的非讼属性,而共有人份额的确定、是否符合分割条件的判断,则属于典型的诉讼事件。这就导致共有物分割之诉兼具非讼向度与诉讼向度,但为效率计,仍应在一个诉讼程序中一并解决。三是在具体确定起诉条件、分割方法、他项权利人的诉讼地位、诉讼费的分配时,亦涉及实体法与程序法的交错问题,应同时满足二者的要求。

Both substantive law and procedural law interact with each other during the lawsuits about the division of co-owned property. The disputes arising from the division of co-owned property are related to many issues which require a package solution because of the integration of substantive rights and duties. As a result, the traditional classification of lawsuits will be unsuitable since the division of co-owned property contains such issues as confirmation, formation, payment and so on. The judgment rules for the division of co-owned property have obvious characteristics of no-lawsuits, while the confirmation of shares and the prerequisites for division are typically lawsuits. Therefore, lawsuits about the division of co-owned property have the characteristics of lawsuits and non-lawsuits. For the sake of efficiency, all the concerned issues shall be solved in a single law-suit. As for the prerequisites for filing a lawsuit, the division rules, the status of other parties and the allocation of court costs, the interaction of both substantive law and procedural law is also obvious.