民事诉讼法律关系考

The Origin and Branches of the “Legal Relationship of Civil Procedure”

“民事诉讼法律关系”是民事诉讼法学理论得以体系化的起点,它是民诉法其他理论、制度、规范的中心连接点。民事诉讼法律关系是一种诉讼法上的法定关系,诉讼法预先设定了诉讼参与主体的程序权利和义务,从而形成以主客体为分析框架的理论结构。“民事诉讼法律关系”是一种动态的法律关系。二重维度的“民事诉讼法律关系”成为大陆法系主要国家民事诉讼理论的共识。民事诉讼电子化带来了诉讼各环节的“碎片化”问题。

“Legal relationship of civil procedure” is the starting point for the systematiwation of the theories in civil procedure law. It is the central connection point of other theories, systems, and norms in the civil procedure law. The legal relationship of civil procedure is a statutory relationship in the procedural law. The procedural rights and obligations of the participants in the litigation are set in advance by the procedural law, thus forming a theoretical structure with analytical framework based on subjects and objects. The dual dimension “legal relationship in civil procedure” has become the consensus of civil procedure theories in major Civil Law states. The “legal relationship of civil procedure” is a dynamic legal relationship that changes with the instance of trial. The electronisation of civil procedure has brought about the problem of “fragmentation” in all aspects of litigation.