民事诉权与审判权之辨:学术梳理、关系之困与逻辑演进

Discrimination of the Relationship between Civil Litigation Right and Judicial Power:Academic combing、Difficulties and Prospects

诉权与审判权作为民事诉讼基本结构中的核心要素,二者之间的关系与整个诉讼构造的发展息息相关。诉权具有人权性、程序性和救济性三种属性,同时,诉权与审判权之间也存在着制约与反向制约的关系。要实现诉权与审判权的协同推进,一方面需要规制审判权对诉权的不当干预,树立正确的诉权与审判权关系理念、在制度上强化对诉权的保护以及加强对审判权的监督;另一方面需要防止诉权被不当使用,可以运用正当程序对滥诉行为进行认定并加以制裁。

The right to appeal and the judicial power are the core elements in the basic structure of civil litigation,and the relation. ship between them is closely related to the development of the entire litigation structure. The right to appeal has three attributes: human rights,procedural and relief. There is also a relationship between the right to appeal and the jurisdiction. To realize their coordinated pro. motion,on the one hand,it is necessary to regulate the improper intervention of the judicial power on the right to appeal,establish the cor. rect concept of the relationship between the right of action and the jurisdiction,strengthen the protection of the right to appeal in the sys. tem,and the supervision of the judicial power;on the other hand,it is a must to prevent the improper use of the right of action,and due pro. cess can be used to identify and sanction indiscriminate prosecution.