民事诉权保障论纲

An Outlined Study on Protection of Civil Right of Action

诉权相对于依法享有的具有直接、具体物质利益或者精神利益的实体性人权而言,是保障实体性人权实现的手段、方法或途径,是一种程序性人权。在我国,民事诉权并未得到宪法、民事诉讼法等立法的明确保护,在民事诉讼中法官侵犯当事人诉权的行为应否受到法律制裁也缺乏法律规定。民事诉权立法上的缺失,导致民事诉权的司法保障情况也令人堪虞。民事诉权不仅具有保护公民合法权益,也具有制约审判权进而保障当事人最大限度地接近司法正义的功用。因此,作为根本法的宪法应对诉权进行明确规定,以昭示诉权的基本人权属性;民事诉讼法则应当落实宪法的规定,通过规范诉权要件、完善主管制度、健全释明权、构建诉讼保险制度以及完善民事诉讼法律责任体系,对民事诉权进行周延的保护。

Compared to substantive human rights with direct, specific material or spiritual interests, the fight of action is a kind of procedural human right, which is a means to guarantee the realization of substantive human rights. In our country, the Constitution and the Civil Procedure Law has not explicit protect the civil fight of action, and in the civil litigation, the behavior that judges violate litigant＇ s right, should be punished by the law is also lack of regulation. The lack of legislation of the civil right of action, has been leading to the judicial safeguards of the civil right of action been worrying. The civil fight of action not only has the protection of citizens＇ legal interest, but also has the function to restrict judicial power and maximize guarantee the parties to close judicial justice. Therefore, as the fundament law of constitution should to clear define the civil fight of action, in order to declare the basic attribute human right of the right of action. The Civil Procedure Law shall implement the regulations of the Constitution, through specification requirements of the fight of action, perfect supervisor system, develop interpretation power, and construct system of lawsuit insurance and perfect legal responsibility system of civil procedure, to circumference the protection of the civil fight of action.