实质诉讼法的“脱私入公”过程及其复兴意义——以温特沙伊德《当代法意识下的罗马私法之诉》的解读为主线

Substantive Civil Procedure: the Process and Renascence of “Separation from Private Law to Public Law”——A Study of Windscheid’s “The Case of Roman Private Law under the Contemporary Legal Concept”

民事诉讼法是实质诉讼规范和诉讼程序规范之集合,但通说却将其同义于诉讼程序法而尘封实质诉讼法。从法律发达史上考察,实质诉讼法曾依附于实体私法体系,且与诉讼程序法长期处于分离状态,在脱离私法体系之后于民事诉讼法中找到了安身之处,并且在公法诉权说的推动下皈依了公法。在实质诉讼法脱私法体系而入诉讼法体系的发展过程中,温特沙伊德的《诉论》发挥了主要原动力作用,因而被奉为促成民事诉讼法走向独立化的"门罗宣言"。本文拟通过解读《诉论》,阐述实质诉讼法脱离私法体系而入公法的民事诉讼法之过程,恢复实质诉讼法的本来面目,以为我们克服民事诉讼法同于纯程序法之观念提供理论上的支撑。

The Civil Procedure Law is a combination of substantive litigation laws and litigation procedural rules.However, it has long been seen as a synonym to procedural law only. From a perspective of the development of legal history, substantive litigation laws have been a part of private law and has always been independent from the procedural law. Since separating from the private law system, substantive procedural law has become a part of civil procedure law. Further, with promoting the theory of ’the right of action’, it is also a form of public law. Windscheid’s ’The Theory of Litigation’ played a major driving force in the course of the separation of the substantive procedural law from the private laws system. For that reason, it was regarded as the "Monroe Manifesto" in promoting the independence of the civil procedure law. By analyzing of ’The Theory of Litigation’, this article expounds the process in which the substantive procedural law separates from the private law system so as to form a part of public law. In doing so it restores its real status of substantive procedural law. It also provides a theoretical basis to uphold the concept that civil procedural law is not equivalent to substantive procedural law.