摘要
确认之诉在域外的历史演进过程决定了其具有补充性、预防性和反转性的特征,需要予以限缩。我国理论界认为确认之诉的诉讼标的是争议的民事法律关系,未对其作具体限定,实务中法院从司法解释和具体案件两个维度将其扩张到各种有争议的法律效力问题。确认之诉的扩张导致诉讼标的功能失灵,无法有效地解决禁止再诉、诉的合并与变更等程序问题,也使得其与给付之诉和形成之诉的界限不明,更可能对行政登记制度产生冲击,影响民事实体法律秩序的稳定。为了限缩确认之诉的范围,大陆法系国家抽象出了确认利益的概念,将其作为特殊的诉讼要件。由于缺乏明确的法律规则、成熟的理论框架和专门的审查程序,我国短期内无法复制确认利益的路径,更宜从诉讼标的上直接限缩确认之诉,原则上只允许对特定的诉讼标的提起,并审慎地建构例外规则。
The historical development of declaratory judgment shows that it is complementary to the coercive relief and could remove the uncertainty in advance, thus preventing unnecessary litigation in the future. As a preventive and supplemental instrument, which could be employed by both parties, the scope of declaratory judgment should be properly limited. Chinese scholars in civil procedure law share the notion that the subject matter of declaratory relief should be confined to the controversial civil legal relationship. However, Chinese courts have seemed to open the door to wider use of declarato- ry judgment in both judicial interpretation and legal practice. Such expansion of declaratory judgment has led to the following problems. Firstly, it would render the function of subject matter of litigation inapplicable. Secondly, .it would blur the boundary between declaratory relief and other types of ac- tion. Thirdly, it would have a negative impact on the system of administrative registration and under- mine the stability of market order. To keep declaratory judgment within bounds, countries in Civil Law system develop a concept of ＂specific interest to declaratory judgment＂ and make it a rule in the code of civil procedure law. It serves as a special litigation requirement to achieve the declaratory judg- ment. However, it is unpractical for China to replicate such concept without the support of a clear rule, a mature legal theory and a specialized judicial procedure. It is more appropriate to restrict the availability of declaratory judgment by restricting the subject matter of litigation. In principle, the declaratory relief could only be sought if the form of action has been expressly established in the current law, and judges should remain cautious to develop any exceptions.
出处
《法学研究》
CSSCI
北大核心
2018年第1期126-145,共20页
Chinese Journal of Law
关键词
确认之诉
诉讼标的
确认利益
诉的类型
declaratory judgment, subject matter of litigation, specific interest to declaratory judgment, type of civil action
