訴訟信托制度研究
發(fā)布時(shí)間：2018-08-24 08:26
【摘要】：訴訟信托是委托人將實(shí)體權(quán)利及相應(yīng)訴訟權(quán)利轉(zhuǎn)移給受托人，由受托人以訴訟當(dāng)事人的身份，為實(shí)現(xiàn)實(shí)體利益進(jìn)行訴訟，產(chǎn)生的訴訟利益歸于受益人的一種制度和訴訟當(dāng)事人形式。訴訟信托將訴訟法中的當(dāng)事人適格理論與實(shí)體法上的信托制度相結(jié)合，利用信托制度的靈活性來(lái)實(shí)現(xiàn)適格當(dāng)事人的向外擴(kuò)張，，從而軟化剛性的訴訟格局。然而訴訟信托面臨的現(xiàn)實(shí)困境是日本、韓國(guó)、我國(guó)以及臺(tái)灣地區(qū)的立法只在特殊情形下承認(rèn)訴訟信托，而都在信托法上對(duì)此持否定態(tài)度。近年來(lái)對(duì)于訴訟信托的正當(dāng)性問(wèn)題學(xué)界頗有爭(zhēng)論，本文欲厘清訴訟信托的內(nèi)涵外延，考察訴訟信托在域外的立法及司法實(shí)踐，論證訴訟信托的正當(dāng)性問(wèn)題，以期對(duì)訴訟信托在我國(guó)的發(fā)展有所裨益。 本文除去導(dǎo)言和結(jié)語(yǔ)部分，共分為四個(gè)章節(jié)。 第一章主要探討訴訟信托的概念，與相關(guān)概念的區(qū)別以及訴訟信托的基本特征等問(wèn)題。針對(duì)訴訟信托的概念出現(xiàn)了三種觀點(diǎn)，筆者首先將對(duì)這三種觀點(diǎn)分別進(jìn)行闡述并在此基礎(chǔ)上完成本文對(duì)訴訟信托的界定，其次厘清訴訟信托與訴訟擔(dān)當(dāng)、訴訟代理等易被混淆的相關(guān)概念，最后對(duì)訴訟信托的基本特征進(jìn)行概括和闡釋。 第二章以當(dāng)事人適格理論的發(fā)展作為線索，介紹當(dāng)事人、當(dāng)事人適格以及訴訟實(shí)施權(quán)的基本概念。訴訟信托是適格當(dāng)事人擴(kuò)張的一種具體手段，本文將在明晰基礎(chǔ)概念的基礎(chǔ)上探討訴訟信托中受托人能夠作為適格當(dāng)事人提起訴訟的訴權(quán)基礎(chǔ)何在。 第三章主要考察訴訟信托在域外的立法與司法實(shí)踐狀況。日本雖然在信托法中對(duì)訴訟信托予以了禁止，然關(guān)于該條立法也存在諸多爭(zhēng)議，且司法實(shí)踐中也容許合理訴訟信托作為一種權(quán)利實(shí)現(xiàn)的方式。我國(guó)臺(tái)灣地區(qū)借鑒了日本禁止訴訟信托的做法，也對(duì)訴訟信托持否定態(tài)度。德國(guó)的團(tuán)體訴訟是一種不作為之訴，但在其他國(guó)家的運(yùn)行已超出此范圍，關(guān)于團(tuán)體訴訟的訴權(quán)基礎(chǔ)學(xué)界頗有爭(zhēng)論，本文認(rèn)為正是訴訟信托。 第四章展望了訴訟信托在我國(guó)的未來(lái)。第一節(jié)分析了訴訟信托在我國(guó)的現(xiàn)狀，雖然我國(guó)信托法亦對(duì)訴訟信托予以了禁止，然訴訟信托在著作權(quán)保護(hù)等領(lǐng)域已經(jīng)發(fā)揮了重要作用。第二節(jié)論證訴訟信托的合法性。一是駁斥了禁止訴訟信托的理由，二是論述了訴訟信托本身存在的價(jià)值意義。第三節(jié)提出了訴訟信托立法解禁的限制以及構(gòu)成要件。第四節(jié)分別闡述了私益訴訟信托和公益訴訟信托在我國(guó)的歸屬，由于法治環(huán)境的不完善和信托市場(chǎng)的不規(guī)范，私益訴訟信托雖有其價(jià)值卻應(yīng)審慎對(duì)待之，而公益訴訟信托在保護(hù)公益方面有極大的利用價(jià)值應(yīng)得到不斷培育和完善。
[Abstract]:Litigation trust means that the principal transfers the substantive rights and the corresponding litigation rights to the trustee, and the trustee acts as the litigant to litigate in order to realize the substantive interests, A system and form of litigation in which benefits accrue to the beneficiary. Litigation trust combines the theory of party suitability in procedural law with the trust system in substantive law, and utilizes the flexibility of trust system to realize the outward expansion of suitably qualified parties, thus softening the rigid litigation pattern. However, the realistic dilemma faced by litigation trust is that the legislation of Japan, Korea, China and Taiwan only recognizes litigation trust under special circumstances, and holds a negative attitude towards it in the trust law. In recent years, there has been some controversy about the legitimacy of litigation trust in academic circles. This paper intends to clarify the connotation and extension of litigation trust, investigate the legislation and judicial practice of litigation trust outside the country, and prove the legitimacy of litigation trust. The aim is to benefit the development of litigation trust in our country. Apart from the introduction and conclusion, this paper is divided into four chapters. The first chapter mainly discusses the concept of Litigation Trust, the difference between Litigation Trust and related concepts, and the basic characteristics of Litigation Trust. There are three viewpoints on the concept of Litigation Trust. Firstly, the author will expound the three viewpoints and then complete the definition of Litigation Trust in this paper, and then clarify the Litigation Trust and Litigation responsibility. The related concepts such as litigation agent are easily confused. Finally, the basic characteristics of litigation trust are summarized and explained. The second chapter introduces the basic concepts of litigant, litigant fit and litigant enforcement right, taking the development of the theory of litigant fitness as the clue. Litigation trust is a concrete means of the expansion of suitably litigant. This paper will discuss where the trustee can act as the basis of litigant's right of action in the litigation trust on the basis of clear basic concept. The third chapter mainly investigates the legislation and judicial practice of litigation trust. Although Japan has prohibited the litigation trust in the trust law, there are still many disputes about the legislation, and the judicial practice also allows the reasonable litigation trust as a way to realize the right. The Taiwan area of our country draws lessons from Japan's practice of prohibiting litigation trust, and also holds a negative attitude towards litigation trust. The action of class action in Germany is a kind of action of omission, but the operation in other countries has exceeded this range. There is a dispute about the foundation of the right of action in class action. This article holds that it is the trust of litigation. The fourth chapter looks forward to the future of litigation trust in our country. The first section analyzes the present situation of litigation trust in our country. Although the trust law of our country also forbids litigation trust, litigation trust has already played an important role in copyright protection and so on. The second section demonstrates the legality of litigation trust. One is to refute the reason of prohibiting litigation trust, the other is to discuss the value meaning of litigation trust itself. The third section puts forward the limitation and constitutive elements of the lifting of the prohibition by the litigation trust legislation. The fourth section expounds the ownership of private interest litigation trust and public interest litigation trust in our country. Due to the imperfect legal environment and the non-standard trust market, the private interest litigation trust should be treated prudently although it has its value. And the trust of public interest litigation should be cultivated and perfected continuously in the aspect of protecting public interest.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類(lèi)號(hào)】：D915.2
本文編號(hào)：2200207
[Abstract]:Litigation trust means that the principal transfers the substantive rights and the corresponding litigation rights to the trustee, and the trustee acts as the litigant to litigate in order to realize the substantive interests, A system and form of litigation in which benefits accrue to the beneficiary. Litigation trust combines the theory of party suitability in procedural law with the trust system in substantive law, and utilizes the flexibility of trust system to realize the outward expansion of suitably qualified parties, thus softening the rigid litigation pattern. However, the realistic dilemma faced by litigation trust is that the legislation of Japan, Korea, China and Taiwan only recognizes litigation trust under special circumstances, and holds a negative attitude towards it in the trust law. In recent years, there has been some controversy about the legitimacy of litigation trust in academic circles. This paper intends to clarify the connotation and extension of litigation trust, investigate the legislation and judicial practice of litigation trust outside the country, and prove the legitimacy of litigation trust. The aim is to benefit the development of litigation trust in our country. Apart from the introduction and conclusion, this paper is divided into four chapters. The first chapter mainly discusses the concept of Litigation Trust, the difference between Litigation Trust and related concepts, and the basic characteristics of Litigation Trust. There are three viewpoints on the concept of Litigation Trust. Firstly, the author will expound the three viewpoints and then complete the definition of Litigation Trust in this paper, and then clarify the Litigation Trust and Litigation responsibility. The related concepts such as litigation agent are easily confused. Finally, the basic characteristics of litigation trust are summarized and explained. The second chapter introduces the basic concepts of litigant, litigant fit and litigant enforcement right, taking the development of the theory of litigant fitness as the clue. Litigation trust is a concrete means of the expansion of suitably litigant. This paper will discuss where the trustee can act as the basis of litigant's right of action in the litigation trust on the basis of clear basic concept. The third chapter mainly investigates the legislation and judicial practice of litigation trust. Although Japan has prohibited the litigation trust in the trust law, there are still many disputes about the legislation, and the judicial practice also allows the reasonable litigation trust as a way to realize the right. The Taiwan area of our country draws lessons from Japan's practice of prohibiting litigation trust, and also holds a negative attitude towards litigation trust. The action of class action in Germany is a kind of action of omission, but the operation in other countries has exceeded this range. There is a dispute about the foundation of the right of action in class action. This article holds that it is the trust of litigation. The fourth chapter looks forward to the future of litigation trust in our country. The first section analyzes the present situation of litigation trust in our country. Although the trust law of our country also forbids litigation trust, litigation trust has already played an important role in copyright protection and so on. The second section demonstrates the legality of litigation trust. One is to refute the reason of prohibiting litigation trust, the other is to discuss the value meaning of litigation trust itself. The third section puts forward the limitation and constitutive elements of the lifting of the prohibition by the litigation trust legislation. The fourth section expounds the ownership of private interest litigation trust and public interest litigation trust in our country. Due to the imperfect legal environment and the non-standard trust market, the private interest litigation trust should be treated prudently although it has its value. And the trust of public interest litigation should be cultivated and perfected continuously in the aspect of protecting public interest.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類(lèi)號(hào)】：D915.2
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相關(guān)期刊論文 前4條
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