任意的当事人变更

Arbitrary Change of Parties

作为一种常见的司法现象,任意的当事人变更根据导致当事人变更的行为可分为三大学说。诉的变更说是德国通说,其无法在日本民事诉讼法规定的条文框架下获得立法支持,而且新当事人被旧当事人的诉讼行为完全拘束这一点在很多情况下对新当事人非常不利。新诉提起与旧诉撤销说是日本通说,其将当事人的变更视为新诉提起与旧诉撤销这两个可分现象,通过法律解释可以认为已经发生的诉讼结果能够适度地在新诉中被利用。特殊行为说作为改良学说登场,但无法说明与新诉提起与旧诉撤销说的本质区别,且无法提出新当事人被旧当事人的诉讼结果所拘束的充分理由。在条件以及效果都没有显著不合适的情况下,应当支持新诉提起与旧诉撤销说。

As a common judicial phenomenon,arbitrary change of parties can be divided into three kinds of theory according to the behavior that caused the change of parties.The change of litigation theory is the German general saying that it cannot obtain legislative support within the framework of the provisions of the Japanese civil procedure law,and the new party is completely bound by the old party’s litigation behavior,which is very unfavorable for the new party in many cases.The initiation of new lawsuits and the revocation of old lawsuits theory is the general theory in Japan.It regards the change of the parties as two separable phenomena of the initiation of a new lawsuit and the revocation of an old lawsuit.Through legal interpretation,it can be considered that the results of litigation that have occurred can be appropriately used in new lawsuits.The special behavior theory appears as an improved theory,but it cannot explain the essential difference between the initiation of new lawsuits and the revocation of old lawsuits theory,and it cannot fully explain the reason why the new party is bound by the old party’s litigation results.If the conditions and effects are not significantly inappropriate,the initiation of new lawsuits and the revocation of old lawsuits theory should be supported.