作为诉讼行为的送达

Service As an Act of Suit

送达与正式通知几乎同义表明我国送达制度倾向于通知的实效性,但其可行性又因缺乏分级制度而导致拟制送达的滥用。送达制度应依托我国相对成熟的民事诉讼法律关系理论、民事诉讼行为理论和民事裁判效力理论。各诉讼主体在不同程序环节就送达这一诉讼行为所承担的角色义务与相应权利,所遵循的行为规范和有效要件,都是在中国式的职权主义与辩论主义妥协模式的逻辑框架内展开的;应以相应事实的证明与推定规范,结合送达与受送达的行为代理与法律拟制,确定通知与送达的法律效果与瑕疵救济,从而在送达规范的实效性功能之不可欲与仪式性功能不可靠的两难困境之间谋求合理平衡。

In China, service seems to underline effective notice but is proved to be practicable for lack of classification rules so that the form of ‘service of legal fiction’ is largely abused. The norms of services of process should established under the doctrines of civil procedural action and judicial effect. According to the procedural legal relationship among the court and the litigants, each of the subjects shall take its legal role in the various stages of the proceedings and is entitled according rights or/and duties, including issuing, servicing or accepting various notices. These actions, just like the other procedural behaviors, may be operated in different stages and for classified objectives;while an effective service shall be proved to satisfy the requirement under the law that logically keep pace with Chinese style coordination Litigation Mode. Moreover, the norms shall keep a balance between effective function of service, which is infeasible, and its ritualization function which is not reliable. The provisions of service shall pay attention to the proof and illation of the fact of either the form or the consequence of the notice which is related to its classification. All these rules, combined with the other rules such as agent of delivery or acceptance, and service of legal fiction, shall decide or impact the legal effect of a notice and remedy of a service.