民事审判中的非讼事件诉讼化现象及克服

Litigation Phenomenon of Non-Litigation Events in Civil Trial and Its Overcoming

与德日等国家及地区的诉讼事件非讼化趋势相反,我国民事审判中对非讼事件诉讼化存在着严重的路径依赖。这种现象不仅导致审判成本增加从而严重地浪费审判资源,而且易于使民商法等实体法规范的目的落空。2021年12月底民事诉讼法修改时采取的繁简分流措施,以及理论上提出的诉讼程序和非讼程序交错适用方案均不能克服这种现象。当下较为有效的措施应当是制定非讼事件程序法,确立非讼程序异于诉讼程序的独立原则和制度,以实现被诉讼化的非讼事件的回归。

Contrary to the trend of non-contentious proceduralized of contentious cases in Germany, Japan and other countries and regions, China’s civil trial relies heavily on the path of contentious proceduralized of non-contentious cases. This not only causes an increase in trial costs, thereby seriously wasting trial resource, but also easily leads to the failure to achieve the purpose of substantive law norms including the Civil and Commercial Law. Neither the measure of sorting complex and simple legal cases adopted by the revision of the Civil Procedure Law amended at the end of December 2021, nor the theoretical scheme of the interleaving use of contentious procedure and non-contentious procedure, could not overcome this phenomenon.At present, the most effective measure is to enact the non-contentious procedure law, establish independent non-contentious procedural principles and systems that are distinct from contentious procedure, so as to realize the return of non-contentious cases which have been proceduralized.