私法形成权之涉讼形态研究

Study on the Litigant Form of the Right of Private Formation

我国学界及实务界常将形成权所涉诉讼统归形成之诉范畴。但是,大陆法系国家通常将形成权细分为私法形成权与形成诉权。前者侧重私权自治,即形成权人通过单方意思表示就能使法律关系发生变动;而后者侧重公力救济,即权利人只能通过起诉的方式行使权利。因此,上述两种形成权所涉诉讼形态也有所不同。亦即,只有形成诉权涉讼可构成形成之诉,而私法形成权涉讼应构成确认之诉。具体而言,私法形成权一经行使,原有法律关系即生变更。如当事人对形成效果再行争议则缺乏形成之诉的利益,只能提起确认之诉。该诉在审理过程中不会与形成异议、给付请求发生诉的合并,且法院的判决既不能变动法律关系,亦不具有对世效。

China’s academic circle and practice circle often form the litigation category of the litigation of the right of formation. However, the civil law countries usually subdivide the right of formation into private law and form the right of appeal. The former focuses on the autonomy of private right, that is, the right person can change the legal relationship by means of the unilateral meaning. While the latter focuses on public relief, that is, the right holder can only exercise the right through prosecution. Therefore, the litigation forms of the above two forms of formation are also different. That is to say, only the litigant can form the lawsuit, and the private law forms the right to litigate should constitute the affirmation lawsuit. In particular, once the right to form private law is exercised, the original legal relationship is changed. If the litigant is not interested in the formation of the effect, it can only bring the confirmation of the lawsuit, and the judgment of the court can neither change the legal relationship nor have the effect on the world.