诉讼标的分类识别研究——从诉讼标的概念操作化开始

Research on the Classification Identification of Litigation Subject-matter——Start from the Concept Operation of the Litigation Subject Matter

在防治不必要衍生案件的意义上,法官正确把握诉讼标的分类识别技术具有重要的现实意义。诉讼标的识别中问题最多的是数量识别与同一性识别。旧说诉讼标的概念内涵与外延一致,契合民事审判中的请求权基础思维。以旧说诉讼标的概念为核心概念,围绕当事人的实体权利主张这个中心,综合诉讼请求、原因事实和法律理由三个指标性要素,运用请求权基础思维方法识别当事人诉请的实体规范类型,可以顺利开展诉讼标的数量识别和同一性识别作业,解决若干理论上长期争议、实践中认识模糊的问题。

Correct judge the number of subject-matter in a case,not only determines the number of the judgment subject and the objective scope of the res judicata,but also concerns the grade jurisdiction,the form of joint litigation and the status of the parties.It is a major issue that decides the basis of the legality of judicial power and the protection of the basic rights of the litigant.The identification of the identity of the subject-matter is related to the repeated litigation judgment,but also related to the protection of the parties'right of action.In judicial practice,there are wrong identification of the number of subject-matter and the identity of subject-matter,result in the technical errors such as the suit that should be accepted is not accepted,improper add parties,error judgment repeated litigation,make judgment omission or beyond the parties claim,cause the appeal,retrial and petition"derivative cases" which should not happen.In the sense of combating unnecessary derivative cases,there is great practical significance for judges to correctly grasp the classification and identification the technology of subjectmatter.conceptual connotation of the subject-matter of the old substantive law is consistent with the extension,and conforms to the basic thinking of the right of claim in the civil trial.Put the identification of the subject-matter in the theoretical cross perspective of substantive law and procedural law,using the subject-matter concept of old substantive law said as the core concept,around the substantive rights claims of the parties,identify the claim basis specification and auxiliary specification of the original claim,from the claims of the parties,the facts of the cause and the legal reasons,and seeking the defense code and its auxiliary code from the defendant's defense,we can accurately see through the subject-matter in civil cases,and then solve a number of problems belonging to litigation subject matter identification.If we realize that the legislative purpose of the right of claim compete is to enhance the power of the right holder to realize his rights,we would not think that such cases have plural subject-matter is a problem.Deeply understand the integrity of joint and several liability,and recognizing that the creditor made to several joint debtors is one claim for payment,we would not be wrong to hold that there are multiple subject-matter in the joint liability action.If we can clearly distinguish between the establishment norms of tort liability and the auxiliary norms of refining the scope of damages,then we can understand why the parties can not claim the treatment fee and emotional distress omited in the former proceedings.In the same way,if we realize that the right of subrogation is an independent right of claim,we will not regard the subcreditor relationship of subrogation as the subject-matter in such cases.As for the identity identification of subject-matter,we must make full use of the three elements,such as the parties'claims,cause facts and legal reasons,to judge whether the subject-matter of the former and later litigation is substantially the same,not only at the same level of form,but also by comparing the parties before and after the lawsuit,in order to look through the different"veil"of the three elements,analyze whether the essential facts used by the parties to support or refute the claim are the same or interlinked.