形成判决对世效:溯源与省思

Erga Omnes Effect of Formative Judgment:Retrospect and Reflection

形成判决对世效得到我国民事诉讼法学界的普遍认可,且具有较强的体系效应。我国的形成判决对世效理论继受于德国法,但其在德国民事诉讼法学术史上素有争议。论证形成判决对世效的理论可以归纳为四种学说:公法变动说、统一变动说、变动效果对世说、法定性说,它们都不足以证成形成判决对世效的正当性。无论是将对世效解读为形成力对世,还是既判力对世,形成判决效力的主观范围都是诉讼法问题,应当以限定于当事人之间的相对性为原则。应当厘清形成力的概念,区分形成判决的私法效果与形成判决对后诉的拘束力。形成判决以相对效为原则,同时存在对世扩张和向特定主体扩张的情况。形成判决效力的主观范围的具体界定,取决于民事实体法规定了哪些形成之诉,因此本质上是一个法教义学问题。

The erga omnes effect of formative judgments(Gestaltungsurteile)is widely recognized in Chinese civil procedural law academia and has a strong systematic influence.The theory of the erga omnes effect of formative judgments in China is inherited from German law,but it has been a subject of controversy in the academic history of German civil procedural law.The theoretical justifications for the erga omnes effect of formative judgments can be summarized into four doctrines:the theory of public law change,the theory of unified change,the theory of erga omnes effect of change,and the theory of statutory character.However,none of these doctrines are sufficient to justify the erga omnes effect of formative judgments.Whether the erga omnes effect is interpreted as the erga omnes effect in the sense of formative force or the erga omnes effect in the sense of res judicata,the subjective scope of the effect of formative judgments is a procedural law issue and should follow the principle of relativity which is limited to the litigants.The concept of formative force should be clarified by distinguishing between the private law effect of formative judgments and the binding effect of formative judgments on subsequent lawsuits.The effect of formative judgments is relative in principle,with the existence of erga omnes expansion and expansion towards specific subjects.The specific determination of the subjective scope of the effect of formative judgments depends on which formative actions are stipulated by civil substantive law,thus essentially being an issue of legal dogmatics.