摘要
主张兼顾民事诉讼法不同价值的平衡论对于纠正民诉法修改中过度追求效率的倾向起到了一定的纠偏作用。但是它的作用主要是治疗性的,且对实体正义有所忽略。目的不明的民事诉讼是盲目的,所以目的论是民诉法修改的元问题,具有优先性。但对于诉讼目的的实现,平衡论有一定的牵制作用。国家规定了民事权利且禁止私力救济,所以有义务通过民事诉讼保护权利,这样做也契合实质正义,因此在目的论上应采权利保护说。它对于立法有若干直接的指引作用,包括设置促进真相呈现的机制,设置促进权利实现的机制,设置或完善防止权利减损的机制等。
The balance theory, which advocates giving consideration to the different values of civil procedure(Law),has played a certain role in correcting the tendency of excessive pursuit of litigation efficiency in the revision of civil procedure law. However, the balance theory has its own shortcomings, such as ignoring substantive justice.Civil litigation with unknown purpose is blind, so teleology is a meta problem in the revision of civil procedure law,which has priority. However, the balance theory has a certain restraining or supervising effect on the realization of the purpose of civil litigation. Because the state stipulates civil rights and prohibits private relief, the state has the obligation to protect rights through civil litigation, which is also in line with substantive justice. Therefore, the theory of right protection should be adopted in teleology. However, this does not mean that the court must ensure that every right can be protected. The theory of protecting rights has several direct guiding functions for legislation, including setting up a mechanism to promote the presentation of the truth, a mechanism to promote the realization of rights, and a mechanism to prevent the impairment of rights.
出处
《法治研究》
CSSCI
2022年第4期81-91,共11页
Research on Rule of Law
关键词
民诉法修改的元问题
诉讼目的
平衡论
权利保护说
the meta problems in the revision of civil procedure law
purpose of litigation
balance theory
theory of right protection
