先决裁量:民刑交叉诉讼中止裁量事由的法定化探索

Prerequisite Discretion: Legalization of Suspending Discretion in Civil-criminal Cross Litigation

诉讼实践中,对于先决关系原理协调民刑交叉诉讼关系的实践方法论问题,需要在充分考察其规范化实践的基础上,通过先决关系裁量,明确中止裁量事由的法定化逻辑及其合理性。实然逻辑上,民刑交叉诉讼中止事由的设定以我国《民事诉讼法》第153条第5项规定为基础;而在应然逻辑层面,须在实然逻辑基础上,将先决关系作为裁量事由予以法定化升级,以实现实然逻辑与应然构造的关联与统一。价值论上,通过将先决关系要素作为裁量事由的规范化实践,即可推动民刑实体法律关系冲突程序化解决,为正当法律程序理念在民刑交叉诉讼实践中适用搭建理性空间,亦可以中止制度的制度理性抑制“刑事裁判优越论”的实践惯性,彰显其从理论到实践的逻辑自洽性。

In litigation practice, as for the practice methodology of the principle of prerequisite relationship to coordinate the relationship in civil-criminal-cross litigation, it is necessary to make clear the legal logic and rationality of the reasons for suspending the discretion through the judgment of prerequisite relationship on the basis of fully investigating its standardized practice. In fact, logically, the establishment of the reasons for the suspension of civil-criminal-cross litigation is based on Item 5, Article 153 of the Civil Procedure Law of the People’s Republic of China;On the level of ought-to-be logic, we should legalize and upgrade the presupposition as a matter of discretion on the basis of reality logic, so as to realize the connection and unity between ought-to be-logic and reality logic.In terms of value theory, through the standardized practice of taking the prerequisite elements as the reason for discretion, we can promote the procedural resolution of the conflict between civil and criminal substantive legal relations, build a rational space for the application of the concept of due process of law in the practice of civil and criminal cross litigation, and can also suspend the institutional rationality of the system to curb the practice inertia of the “superiority theory of criminal judgment”, demonstrating its logical consistency from theory to practice.