诉的利益:内涵、功用与制度设计

Interest of Litigation:Connotation,Function and System Design

诉的利益是法院本案实体判决的要件之一。本文对这一概念应有的内涵、功用以及如何对诉的利益进行审查判断进行了细致的探讨,归纳和提出了审查判断的若干规范性命题,进一步深化了对诉的利益的认识。在此基础上,文章提出应当将诉的利益这一要件从现行的起诉要件中移除,将其纳入新构建的诉讼要件之中,并在起诉受理之后的诉讼阶段中进行审查和判断。本文还指出,正确判断和处理诉的利益,需要裁判者根据具体情形自由裁量,因此需要有相应的司法体制予以支持,以获得正当性。同时还需要更加开放的司法公开机制推动诉的利益的类型化研究,细化审查判断的规范性命题。

The interest of action is one of the substantive requirements which the court needs to consider in a case. This article discusses meticulously the connotation and function of this conception, as well as how to examine and judge the interest of action. Some normative propositions about its examination and judgment are inducted and proposed, and the understanding of the interest of action is further deepened.On the above basis, this article puts forward that the interest of action should be re- moved from the current requirements to commence an action and be included in the newly established prerequisites in lawsuit, which will be examined and judged after filing and accepting a case. It is also pointed out that the correct judgment and disposi- tion of the interest of action needs judges＇ discretion in accordance with concrete situations and thus needs correspondingjudicial systems in support to get justification. Meanwhile, our judicial open mechanism should be more open in order to promote clas- sificational study on interest of action and refine normative propositions about its examination and judgment.