诉权视角下诉审衔接规范的反思与修正

Reflection and Amendment on Cohesive Norms of Litigation and Trial from the Perspective of the Right of Action

立案登记制改革作为诉权保障的重要环节,改变了立案审查规范中的立案流程,但起诉状登记后仍需实质审查,而非以登记方式形式审查立案。不改变《民事诉讼法》第122条和第127条规范造成的成立要件和诉讼要件一并审查模式,立案登记规范就无法真正保障诉权。理论界已经提出诉讼行为阶层式评价体系多年,但实务界并未采纳。产生这一现象是因为传统强职权主义模式下的审判权主导理念仍然存在于司法实践中。依据现代民事诉讼目的和裁判请求权宪法理念,应当构建诉权主导下的诉审结构性均衡关系。以形式要件、真正诉讼要件和不真正诉讼要件为划分标准,可直接采用诉讼程序规范和实质诉讼规范规制诉审关系中的具体要件,这一改良方案有助于当下立案登记改革的真正落地,从而切实保障诉权的实现。

The reform of the case registration system,as an important link in the protection of the right of action,changed the filing process in case examination norms.The complaint still needs substantive review after the registration instead of examining formally.However,if it does not change the review mode of the elements of establishment and prerequisite in lawsuit caused by articles 119 and 124 of the Civil Procedure Law,the case registration system won’t truly guarantee the right of action.The hierarchical evaluation system of litigation behavior has been put forward theoretically for many years,but has not been adopted actually.This phenomenon occurs because the concept of dominance of civil jurisdiction under the traditional power model still exists in judicial practice.According to the purpose of modern civil litigation and the constitutional concept of the right of access to justice,the structurally balanced relationship between litigation and trial under the right of action should be constructed.With formal requirement,real prerequisite in lawsuit and not real prerequisite in lawsuit as the division criteria,procedural and substantive norms of litigation can be directly adopted to regulate the specific requirements of the relationship between litigation and trial.This improved plan helps to the real implementation of the current case registration reform,so as to effectively ensure the realization of the right of action.