要件事實(shí)理論在居間合同糾紛訴訟中的應(yīng)用
發(fā)布時(shí)間：2018-09-05 16:01
【摘要】：現(xiàn)今中國(guó)，民事訴訟中的一系列理論如訴訟標(biāo)的理論、主張證明責(zé)任理論等都爭(zhēng)相成為研究的熱點(diǎn)，所取得的研究成果可謂汗牛充棟。但是，研究中暴露出來(lái)的問(wèn)題，尤其是實(shí)體與程序相脫節(jié)的困境，絕對(duì)不容我們忽視和回避。在尋求外緣因素而無(wú)法擺脫困境的死胡同里，中村法學(xué)派方法論為我國(guó)民事訴訟理論研究帶來(lái)了一絲啟迪——鑄造方法論工具，尋求內(nèi)在突破。于是，發(fā)端于日本司法研修中的要件事實(shí)理論就在這種實(shí)體法與訴訟法分道揚(yáng)鑣的背景下為我們所借鑒。雖然作為一門法學(xué)理論，要件事實(shí)理論的歷史并不久遠(yuǎn)，但國(guó)內(nèi)外學(xué)者不懈的探索與實(shí)踐使其具備了深厚的理論根基，為我國(guó)民事司法實(shí)踐提供了很大的便利。但須知，靜態(tài)的理論只有放到動(dòng)態(tài)的實(shí)踐中進(jìn)行應(yīng)用，才能得到檢驗(yàn)并最終實(shí)現(xiàn)其價(jià)值。本文以居間合同糾紛為實(shí)踐對(duì)象，將要件事實(shí)理論應(yīng)用到該糾紛的訴訟過(guò)程中，指導(dǎo)雙方當(dāng)事人進(jìn)行攻擊防御，，使訴訟得以公正、迅速的解決。內(nèi)容大致分為三部分： 第一部分是要件事實(shí)理論部分，是最基礎(chǔ)也是最重要的部分。該部分對(duì)要件事實(shí)理論的基礎(chǔ)概念和本質(zhì)特征進(jìn)行了簡(jiǎn)要的梳理，并從相關(guān)概念、特征、制度背景、思想淵源、基本問(wèn)題和主要機(jī)能六個(gè)方面對(duì)其進(jìn)行了詳盡的闡釋，為后文的具體操作鋪陳了理論基石。尤其是攻擊防御體系的配置，不僅使實(shí)體與程序相契合，也使訴訟與裁判相對(duì)接，具有很強(qiáng)的可操作性。 第二部分是要件事實(shí)理論的實(shí)踐部分，可分為兩小部分。前部分以居間合同糾紛為實(shí)踐載體，將其常見(jiàn)的訴訟類型根據(jù)請(qǐng)求原因的不同歸納為兩類：有關(guān)居間報(bào)酬糾紛的訴訟和有關(guān)居間必要費(fèi)用糾紛的訴訟。并根據(jù)攻擊防御體系的配置，將要件事實(shí)理論具體應(yīng)用到以上兩類訴訟中，分別對(duì)訴訟標(biāo)的、請(qǐng)求原因事實(shí)、抗辯事實(shí)等進(jìn)行了歸納和總結(jié)。后部分以實(shí)例分析的方式具體應(yīng)用要件事實(shí)理論，將案情復(fù)雜的糾紛訴訟納入攻擊防御體系進(jìn)行分析和評(píng)價(jià)，最后還指出了法院在案件實(shí)際審理和裁判過(guò)程中存在的突出問(wèn)題。 第三部分是要件事實(shí)理論的延伸部分。該部分從要件事實(shí)理論的角度出發(fā)，首先對(duì)我國(guó)審前準(zhǔn)備程序的完善提出了期望，并因此引入釋明權(quán)以使法官更妥當(dāng)?shù)匦惺箤?shí)質(zhì)指揮權(quán)；然后對(duì)民事判決書的改革提出了具體要求，即在事實(shí)和理由兩部分加強(qiáng)與要件事實(shí)有關(guān)的“說(shuō)理性”。 要件事實(shí)理論作為方法論工具，其價(jià)值不僅體現(xiàn)在具體結(jié)論上，也體現(xiàn)在思考方式上。本文將要件事實(shí)理論這個(gè)大課題放在居間合同糾紛這個(gè)小視域中進(jìn)行研究和實(shí)踐，所得出的成果雖不值一提，但在過(guò)程中卻掌握了一種法律思維方法，同時(shí)，也確定了今后學(xué)習(xí)思考的方向和路徑。
[Abstract]:Nowadays, a series of theories in civil litigation, such as the theory of object of action and the theory of burden of proof, have become the focus of research. However, the problems exposed in the research, especially the dilemma of disconnection between entity and procedure, must not be ignored and avoided. In the dead end of seeking for external factors and unable to get rid of the predicament, the methodology of Nakamura School of Law has brought a hint of enlightenment to the theoretical study of civil action in China and sought for an internal breakthrough. Therefore, the fact theory, which originated in Japanese judicial research, is used for reference under the background of the separation of substantive law and procedural law. As a theory of law, the theory of facts of elements is not a long history, but the unremitting exploration and practice of scholars at home and abroad have made it have a deep theoretical foundation, which has provided great convenience for the civil judicial practice of our country. But it is important to know that the static theory can only be tested and finally realized if it is applied in dynamic practice. This paper takes the dispute of intermediary contract as the practical object, applies the theory of essential facts to the litigation process of the dispute, instructs both parties to defend themselves against attack, so that the lawsuit can be solved fairly and quickly. The content is divided into three parts: the first part is the theory of facts, the most basic part is the most important part. This part briefly combs the basic concepts and essential characteristics of the essential facts theory, and explains them in detail from the following six aspects: related concepts, characteristics, institutional background, ideological origins, basic problems and main functions. It lays the theoretical foundation for the concrete operation of the following text. Especially, the disposition of attack defense system not only makes entity and procedure coincide, but also makes litigation and judge docking, which is very maneuverable. The second part is the practical part of the theory of essential facts, which can be divided into two small parts. In the first part, the mediating contract dispute is taken as the practical carrier, and the common litigation types are classified into two categories according to the different reasons of the request: the litigation about the intermediation compensation dispute and the lawsuit about the intermediary necessary expenses dispute. According to the configuration of the defense system of attack, the theory of essential facts is applied to the above two kinds of litigation, and the object of the lawsuit, the facts of the reason of the request and the facts of the defense are summarized and summarized respectively. In the latter part, the author applies the theory of facts to analyze and evaluate the complex dispute litigation system, and finally points out the outstanding problems in the process of case trial and adjudication. The third part is the extension of the theory of essential facts. This part from the point of view of the theory of important facts, first of all, put forward the expectation to the perfection of the pretrial preparation procedure of our country, and therefore introduce the power of interpretation to make the judge exercise the substantive command more appropriately; Then it puts forward the concrete request to the reform of the civil judgment, that is, to strengthen the "theory of reason" related to the facts of the elements in both the facts and the reasons. As a methodological tool, the value of essential fact theory is not only reflected in the concrete conclusion, but also in the way of thinking. In this paper, the important fact theory is studied and put into practice in the small field of mediating contract dispute. The results obtained are not worth mentioning, but in the process, we have grasped a kind of legal thinking method, at the same time, It also determines the direction and path of learning and thinking in the future.
【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
【分類號(hào)】：D923.6;D925.1
本文編號(hào)：2224762
[Abstract]:Nowadays, a series of theories in civil litigation, such as the theory of object of action and the theory of burden of proof, have become the focus of research. However, the problems exposed in the research, especially the dilemma of disconnection between entity and procedure, must not be ignored and avoided. In the dead end of seeking for external factors and unable to get rid of the predicament, the methodology of Nakamura School of Law has brought a hint of enlightenment to the theoretical study of civil action in China and sought for an internal breakthrough. Therefore, the fact theory, which originated in Japanese judicial research, is used for reference under the background of the separation of substantive law and procedural law. As a theory of law, the theory of facts of elements is not a long history, but the unremitting exploration and practice of scholars at home and abroad have made it have a deep theoretical foundation, which has provided great convenience for the civil judicial practice of our country. But it is important to know that the static theory can only be tested and finally realized if it is applied in dynamic practice. This paper takes the dispute of intermediary contract as the practical object, applies the theory of essential facts to the litigation process of the dispute, instructs both parties to defend themselves against attack, so that the lawsuit can be solved fairly and quickly. The content is divided into three parts: the first part is the theory of facts, the most basic part is the most important part. This part briefly combs the basic concepts and essential characteristics of the essential facts theory, and explains them in detail from the following six aspects: related concepts, characteristics, institutional background, ideological origins, basic problems and main functions. It lays the theoretical foundation for the concrete operation of the following text. Especially, the disposition of attack defense system not only makes entity and procedure coincide, but also makes litigation and judge docking, which is very maneuverable. The second part is the practical part of the theory of essential facts, which can be divided into two small parts. In the first part, the mediating contract dispute is taken as the practical carrier, and the common litigation types are classified into two categories according to the different reasons of the request: the litigation about the intermediation compensation dispute and the lawsuit about the intermediary necessary expenses dispute. According to the configuration of the defense system of attack, the theory of essential facts is applied to the above two kinds of litigation, and the object of the lawsuit, the facts of the reason of the request and the facts of the defense are summarized and summarized respectively. In the latter part, the author applies the theory of facts to analyze and evaluate the complex dispute litigation system, and finally points out the outstanding problems in the process of case trial and adjudication. The third part is the extension of the theory of essential facts. This part from the point of view of the theory of important facts, first of all, put forward the expectation to the perfection of the pretrial preparation procedure of our country, and therefore introduce the power of interpretation to make the judge exercise the substantive command more appropriately; Then it puts forward the concrete request to the reform of the civil judgment, that is, to strengthen the "theory of reason" related to the facts of the elements in both the facts and the reasons. As a methodological tool, the value of essential fact theory is not only reflected in the concrete conclusion, but also in the way of thinking. In this paper, the important fact theory is studied and put into practice in the small field of mediating contract dispute. The results obtained are not worth mentioning, but in the process, we have grasped a kind of legal thinking method, at the same time, It also determines the direction and path of learning and thinking in the future.
【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
【分類號(hào)】：D923.6;D925.1
【參考文獻(xiàn)】
相關(guān)期刊論文 前5條
1 陳泓言;;論民事訴訟的目的——以中村法學(xué)派的方法論為視角[J];東莞理工學(xué)院學(xué)報(bào);2010年04期
2 段厚省;;論民事案件裁判方法——在事實(shí)和法律之間探尋[J];法律適用;2006年05期
3 章恒筑;夏瑛;;日本要件事實(shí)論綱——一種民事訴訟思維的展開(kāi)[J];法學(xué)家;2005年03期
4 龍?jiān)戚x;段文波;;略論證明責(zé)任與主張責(zé)任的相互關(guān)系[J];法學(xué)評(píng)論;2008年03期
5 許可;;職權(quán)干涉與裁判突襲——從南京彭宇案一審判決看當(dāng)下之民事審判[J];清華法學(xué);2008年06期
本文編號(hào)：2224762
本文鏈接：http://sikaile.net/falvlunwen/susongfa/2224762.html
最近更新
教材專著
