要件事實理論在運輸合同糾紛訴訟中的應用
發(fā)布時間：2018-09-15 06:57
【摘要】：要件事實理論，作為日本民事訴訟實務界最為推崇亦最為核心的審判方法論，，在被我國學者引進之后，至今仍以理論介紹為主，將該理論應用于司法實踐的研究較為少見。民事司法的核心，是通過對審構(gòu)造程序確定實體私法所規(guī)定的權(quán)利并提供必要的救濟，而對審程序的核心是法院在當事人雙方攻擊防御下居中審理裁判的過程，作為擁有一整套體系化理論的方法論工具，要件事實理論具備了民事訴訟理論與實踐的雙重魅力，較完整地梳理與分析其于一類糾紛中的應用，應能為推廣該理論起到一定的作用，本文即以運輸合同糾紛訴訟為例，探討要件事實理論在司法實務中的應用。 具體而言，本文涉及要件事實理論介紹及該理論在運輸合同糾紛訴訟中的應用兩大問題，共分為四章： 第一章是全文研究的起點，即要件事實理論的介紹。源起于日本司法研修的要件事實是全文的關(guān)鍵詞，對要件事實內(nèi)涵特征、理論基礎(chǔ)及訴訟機能的分析解釋，是對該理論由表及里、從概念到理論再到實踐作用的全方位審視，而對于民事訴訟目的、證明責任以及主張責任和要件事實關(guān)系的討論，是為后文的具體應用準備工具。 第二章是運輸合同糾紛訴訟與要件事實理論的聯(lián)結(jié)點。從介紹運輸合同糾紛及其常見訴訟類型入手，以訴訟標的為分類標準，探討要件事實理論對于劃分各種糾紛訴訟類型的意義，重點以違約損害賠償糾紛訴訟為例，分析要件事實的分類，并以該類型訴訟中當事人攻擊防御的展開為線索，探討要件事實的檢索方法。 第三章是全文理論與實踐應用分析的核心，以運輸合同貨損賠償糾紛訴訟案例為例，梳理要件事實理論的應用情況。第一節(jié)為案例描述，介紹該起糾紛訴訟的重點情況；第二節(jié)開始是對要件事實的應用情況的分析，從訴訟標的特定情況入手，明確要件事實理論的作用起點；第三節(jié)討論當事人的攻擊防御情況，以要件事實為線索，剖析當事人幾輪攻擊防御的方法；第四節(jié)是法官審理裁判情況的總結(jié)，以上述理論為聯(lián)結(jié)，和當事人的攻擊防御情況對接；第五節(jié)為該案例應用中反映出的突出問題，包括當事人攻防過程中的抗辯事實證明不充分、法官審理裁判中遺漏訴訟請求以及法律適用錯誤三個方面，緊扣要件事實的訴訟機能，對實踐中的理論應用情況做出總結(jié)，探討得失。 第四章是要件事實理論與我國爭點整理程序的建構(gòu)與完善。從第三章的實踐應用所反映的三個問題，總結(jié)出問題的癥結(jié)點在于對上述理論應用把握的疏忽及司法實踐環(huán)節(jié)的相關(guān)漏洞，即爭點整理程序的缺失。筆者從爭點整理程序概述出發(fā)，明確該程序?qū)τ趯崉諏徟幸约吧鲜隼碚搼玫闹匾饔�，考察我國有關(guān)現(xiàn)行立法和司法狀況，并以上述理論為出發(fā)點，提出完善爭點整理程序的相關(guān)建議。
[Abstract]:After being introduced by Chinese scholars, the theory of essential facts, which is the most highly respected and core trial methodology in the field of civil litigation in Japan, is still mainly introduced in theory, and the research on its application in judicial practice is rare. The core of civil justice is to determine the rights and provide necessary relief in the substantive private law through the procedure of trial construction, while the core of the trial procedure is the process of the court trying the judgment in the middle of the defense of both parties. As a methodological tool with a set of systematized theories, the theory of essential facts has the dual charm of theory and practice of civil action, which is relatively complete in combing and analyzing its application in a class of disputes. It should play a certain role in popularizing this theory. This paper, taking the dispute litigation of transportation contract as an example, discusses the application of element fact theory in judicial practice. Specifically, this paper involves the introduction of the theory of essential facts and the application of this theory in the litigation of transport contract disputes. It is divided into four chapters: the first chapter is the starting point of the research, namely the introduction of the theory of facts of elements. The essential facts originated from the judicial study in Japan are the key words of the full text. The analysis and interpretation of the connotation, theoretical basis and litigation function of the elements facts are an omni-directional examination of the theory from the outside to the inside, from the concept to the theory to the function of practice. For the purpose of civil action, the burden of proof and the discussion of the factual relationship between the claim responsibility and the elements are the preparation tools for the later application. The second chapter is the connection of the theory of transportation contract dispute litigation and elements fact. Starting with introducing the disputes of transport contract and their common types of litigation, taking the object of litigation as the classification standard, this paper discusses the significance of the theory of essential facts for the classification of various types of disputes, with the emphasis on the litigation of damages for breach of contract as an example. This paper analyzes the classification of essential facts, and discusses the retrieval method of elements facts by taking the development of the defense of the parties' attack in this kind of litigation as the clue. The third chapter is the core of the application of the theory and practice, taking the case of freight damage compensation dispute of transportation contract as an example, combing the application of the theory of essential facts. The first section is the case description, introduces the key situation of the dispute litigation, the second section begins with the analysis of the application of the facts of the elements, starting with the specific circumstances of the subject matter of the lawsuit, and clarifies the starting point of the action of the theory of the facts of the elements. The third section discusses the attack defense situation of the parties, taking the facts of the elements as the clue, analyzes the methods of several rounds of attack defense of the parties; the fourth section is the summary of the judges' adjudication, which is connected with the above theories. The fifth section is about the outstanding problems reflected in the application of the case, including the fact that the defense of the parties in the process of attack and defense has proved inadequate, The judge omits the lawsuit request and the law application error in three aspects, closely links the lawsuit function of the essential elements fact, makes the summary to the theory application situation in practice, discusses the gain and loss. The fourth chapter is the construction and perfection of the theory of essential facts and the procedure of collating points in our country. From the three problems reflected in the practical application of the third chapter, it is concluded that the crux of the problem lies in the negligence of the application of the above theory and the relevant loopholes in the judicial practice, that is, the lack of the collation procedure. The author starts from the outline of the dispute arrangement procedure, clarifies the important role of the procedure for the practical trial and the application of the above theory, examines the current legislation and judicial situation of our country, and takes the above theory as the starting point. Put forward the relevant suggestions to improve the process of collation of points.
【學位授予單位】：華東政法大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D915.2
本文編號：2244108
[Abstract]:After being introduced by Chinese scholars, the theory of essential facts, which is the most highly respected and core trial methodology in the field of civil litigation in Japan, is still mainly introduced in theory, and the research on its application in judicial practice is rare. The core of civil justice is to determine the rights and provide necessary relief in the substantive private law through the procedure of trial construction, while the core of the trial procedure is the process of the court trying the judgment in the middle of the defense of both parties. As a methodological tool with a set of systematized theories, the theory of essential facts has the dual charm of theory and practice of civil action, which is relatively complete in combing and analyzing its application in a class of disputes. It should play a certain role in popularizing this theory. This paper, taking the dispute litigation of transportation contract as an example, discusses the application of element fact theory in judicial practice. Specifically, this paper involves the introduction of the theory of essential facts and the application of this theory in the litigation of transport contract disputes. It is divided into four chapters: the first chapter is the starting point of the research, namely the introduction of the theory of facts of elements. The essential facts originated from the judicial study in Japan are the key words of the full text. The analysis and interpretation of the connotation, theoretical basis and litigation function of the elements facts are an omni-directional examination of the theory from the outside to the inside, from the concept to the theory to the function of practice. For the purpose of civil action, the burden of proof and the discussion of the factual relationship between the claim responsibility and the elements are the preparation tools for the later application. The second chapter is the connection of the theory of transportation contract dispute litigation and elements fact. Starting with introducing the disputes of transport contract and their common types of litigation, taking the object of litigation as the classification standard, this paper discusses the significance of the theory of essential facts for the classification of various types of disputes, with the emphasis on the litigation of damages for breach of contract as an example. This paper analyzes the classification of essential facts, and discusses the retrieval method of elements facts by taking the development of the defense of the parties' attack in this kind of litigation as the clue. The third chapter is the core of the application of the theory and practice, taking the case of freight damage compensation dispute of transportation contract as an example, combing the application of the theory of essential facts. The first section is the case description, introduces the key situation of the dispute litigation, the second section begins with the analysis of the application of the facts of the elements, starting with the specific circumstances of the subject matter of the lawsuit, and clarifies the starting point of the action of the theory of the facts of the elements. The third section discusses the attack defense situation of the parties, taking the facts of the elements as the clue, analyzes the methods of several rounds of attack defense of the parties; the fourth section is the summary of the judges' adjudication, which is connected with the above theories. The fifth section is about the outstanding problems reflected in the application of the case, including the fact that the defense of the parties in the process of attack and defense has proved inadequate, The judge omits the lawsuit request and the law application error in three aspects, closely links the lawsuit function of the essential elements fact, makes the summary to the theory application situation in practice, discusses the gain and loss. The fourth chapter is the construction and perfection of the theory of essential facts and the procedure of collating points in our country. From the three problems reflected in the practical application of the third chapter, it is concluded that the crux of the problem lies in the negligence of the application of the above theory and the relevant loopholes in the judicial practice, that is, the lack of the collation procedure. The author starts from the outline of the dispute arrangement procedure, clarifies the important role of the procedure for the practical trial and the application of the above theory, examines the current legislation and judicial situation of our country, and takes the above theory as the starting point. Put forward the relevant suggestions to improve the process of collation of points.
【學位授予單位】：華東政法大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D915.2
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