論我國民事判決已決事實(shí)的預(yù)決效力
發(fā)布時間：2019-03-28 20:02
【摘要】：已決事實(shí)，是指已為人民法院生效判決所確認(rèn)的事實(shí)。已決事實(shí)的效力，屬于判決效力的范疇，賦予已決事實(shí)預(yù)決效力本應(yīng)受到各方面的尊重和維護(hù)。現(xiàn)行民事訴訟法對“已決事實(shí)”沒有做出明文規(guī)定，只在相關(guān)司法解釋中對已決事實(shí)作了規(guī)定，該規(guī)定原則和抽象，很難為司法實(shí)務(wù)提供指導(dǎo)和為理論研究提供范本；在學(xué)界，學(xué)者基于既判力理論、證據(jù)法理論、司法認(rèn)知理論等從既判力、爭點(diǎn)效、中間判決、司法認(rèn)知、“公文書”較高的證明力角度形成了不同的理論構(gòu)架，這些理論很難說是處理我國已決事實(shí)問題的最佳進(jìn)路；在司法實(shí)踐中，法官基于不同的法律思維和邏輯，賦予已決事實(shí)不同的屬性定位、效力、救濟(jì)措施，這其中還沒有形成統(tǒng)一的處理之道。該制度這種在理論上的分歧和司法實(shí)踐上處理方法的不統(tǒng)一的現(xiàn)狀，顯然不利于該問題的解決和維護(hù)訴訟的糾紛解決機(jī)能�；谖覈ㄖ蝹鹘y(tǒng)和現(xiàn)有成文法規(guī)定，本文主張對已決事實(shí)的屬性、范圍、效力作出清晰的規(guī)定，并完善相關(guān)配套措施，形成一條符合我國司法實(shí)踐的立法路徑，實(shí)現(xiàn)已決事實(shí)本有的價值和功能。 本文第一部分為引言即問題的提出部分，根據(jù)傳統(tǒng)民事訴訟理論，除抵消抗辯外，既判力客觀范圍限于判決主文部分，但這并不意味著判決理由不具有任何判決效力。以司法判決為依托作出的事實(shí)認(rèn)定，屬于判決效力的組成部分，本應(yīng)受到各方面的重視。但是，在學(xué)界，學(xué)者基于不同的理論依據(jù)為已決事實(shí)尋找了不同的解決策略，理論研究的分歧很難對已決事實(shí)制度在同一層面進(jìn)行探討；司法解釋的原則和抽象，給人的印象是我國并沒有建立真正的已決事實(shí)制度；在司法實(shí)踐中，法官基于不同的法律思維，對已決事實(shí)問題的解決還存在著不統(tǒng)一的處理之道。 第二部分從我國民事判決已決事實(shí)預(yù)決效力制度的現(xiàn)狀出發(fā)，分別從立法及司法解釋、司法實(shí)踐、現(xiàn)有理論研究層面來考察。立法的原則和抽象，很難為已決事實(shí)制度的適用提供可操作性的立法規(guī)范；在實(shí)務(wù)界，法官基于不同的法律邏輯和思維，對已決事實(shí)的處理存在著不統(tǒng)一的法律解釋適用；在理論研究上，學(xué)者們基于不同的視角對已決事實(shí)制度的理論構(gòu)架，還存在分歧。已決事實(shí)的效力來源于判決效力，本應(yīng)受到各方面的尊重和維護(hù)，但這種理論上存在分歧和司法實(shí)踐上處理方法的不統(tǒng)一的現(xiàn)狀，顯然不利于該問題的解決和實(shí)現(xiàn)該制度的價值和功能。 第三部分是對我國民事判決已決事實(shí)制度研究的必要性和可行性分析，首先，基于訴訟效率、法的安定性、訴訟的糾紛解決機(jī)能、職權(quán)主義訴訟模式的修正的分析，論述完善我國民事判決已決事實(shí)制度是必要的；然后，基于預(yù)決效力的相對性、程序保障和自我責(zé)任的結(jié)果、法律真實(shí)的追求、處分原則訴訟價值理念，得出對我國民事判決已決事實(shí)的制度的構(gòu)建是可行的。 第四部分是對現(xiàn)有解決已決事實(shí)效力問題的制度理論進(jìn)行比較與評析，分別從“爭點(diǎn)效”理論、爭點(diǎn)排除規(guī)則、中間判決制度、司法認(rèn)知理論、賦予“公文書”較高的證明力理論的現(xiàn)有研究中對處理已決事實(shí)問題的方法進(jìn)行評析得出，這些制度的范圍、效力和立法本意并非與已決事實(shí)制度的本質(zhì)特征相吻合，若適用于已決事實(shí)制度則存在著制度障礙。 第五部分基于以上分析筆者嘗試著提出對我國已決事實(shí)制度完善的建議。首先，從民事判決已決事實(shí)預(yù)決效力的一般法理分析，具體界定了我國民事判決已決事實(shí)的具體范圍、預(yù)決效力的性質(zhì)和屬性。根據(jù)判決書的結(jié)構(gòu)體例，事實(shí)認(rèn)定出現(xiàn)在判決理由部分，已決事實(shí)客觀范圍應(yīng)界定為判決理由部分認(rèn)定的事實(shí)，以區(qū)別于既判力客觀范圍；對已決事實(shí)的效力進(jìn)行分析，主張已決事實(shí)具有相對的預(yù)決效力，當(dāng)后訴中有相反證據(jù)時，允許當(dāng)事人再次爭議，法院可以再次認(rèn)定；其次，立足于現(xiàn)有司法解釋規(guī)定，從立法層面對范圍、效力明確界定，以為司法實(shí)踐提供可操作性的準(zhǔn)則；最后，在現(xiàn)有立法體系中，，完善與已決事實(shí)相關(guān)的配套措施的規(guī)定，提高法官職業(yè)水平和能力，規(guī)范判決文書寫作，加強(qiáng)法官的釋明義務(wù)方面為已決事實(shí)制度提供人員及技術(shù)保障。
[Abstract]:The facts that have been determined are the facts that have been confirmed for the effective judgment of the people's court. The validity of the determined facts, which belongs to the category of the effect of the judgment, gives the pre-determined effect of the determined facts to be respected and maintained in all respects. In that present civil procedure law, there is no express provision on the "the fact that it has been determined", and only in the relevant judicial interpretation, the facts have been set, which is difficult to provide guidance for the judicial practice and provide a model for theoretical research; in the academic field, the scholars are based on the theory of the judgment force and the theory of evidence law. The theory of judicial cognition has formed a different theoretical framework from the angle of the proof force, the point-of-point effect, the middle sentence, the judicial cognition and the higher "public instrument", which is hard to say is the best way to deal with the fact problem in our country; in the judicial practice, On the basis of different legal thinking and logic, the judge has given different attribute positions, effects and relief measures according to different facts, which has not formed a unified approach. This system, which is in theory and the non-uniform current situation of the method in the judicial practice, is obviously not conducive to the solution of the problem and the dispute resolution function in the maintenance of the lawsuit. Based on the tradition of the rule of law in our country and the provisions of the existing statutory law, this paper is to make clear provisions on the attributes, scope and effect of the facts, and to perfect the relevant supporting measures to form a legislative path that is in line with the judicial practice of our country and to realize the value and function of the fact. The first part of this paper is the introduction to the question. According to the traditional theory of civil action, in addition to the counterbalancing, the objective scope of the judgment is limited to the main part of the judgment, but this does not mean that the judgment reason does not have any judgment effect. The fact that the judicial decision is based on the judgment of the judicial decision is an integral part of the effectiveness of the sentence and should have been weighed by the various aspects. However, in the academic field, the scholars have found different solution strategies based on different theoretical bases, and the differences in the theoretical research are difficult to probe into the fact system at the same level; the principle and the evacuation of the judicial interpretation In the judicial practice, the judge is based on different legal thinking, and the solution to the question of the fact is not unified. The second part, from the current situation of the system of the pre-determination of the fact of the civil judgment in our country, from the legislative and judicial explanation, the judicial practice, the existing theoretical research level, The principle and the abstract of the legislation makes it difficult to provide the applicable legislative norm for the application of the factual system; in the practical world, the judge is based on the different legal logic and the thinking, and there is a non-uniform legal interpretation for the processing of the determined facts; in theory In this study, the scholars based on different perspectives on the theoretical framework of the factual system, and also The validity of the determined facts is derived from the effect of the judgment, which should have been respected and maintained in all respects, but there are differences in the theory and the non-uniform current situation of the processing methods in the judicial practice, which is obviously not conducive to the solution of the problem and the value of the system. The third part is the necessity and feasibility of the research on the fact system of the civil judgment in our country, first, on the basis of the litigation efficiency, the stability of the law, the dispute resolution function of the lawsuit, the power-based litigation mode On the basis of the relativity of the pre-determined effect, the result of the procedure guarantee and the self-responsibility, the real pursuit of the law and the principle of punishment, the analysis of the correction is necessary. The concept of the value of the lawsuit and the structure of the system for judging the facts of the civil judgment in our country The fourth part is to compare and analyze the system theory of the existing problem of the effect of the fact, from the "point-to-point effect" theory, the point of struggle and the middle decision system, respectively. The scope, effect and legislative meaning of these systems are not in agreement with the essential characteristics of the established fact system. The fifth part is based on the above analysis, and the author tries to make a decision to our country On the basis of the general legal analysis of the fact that the civil judgment has been determined, the specific scope of the facts of the civil judgment in our country is defined. The nature and attributes of the decision-making. According to the structure of the judgment, the fact is found to be in the case of the judgment. The objective scope of the factual facts should be defined as the fact of the determination of the reason for the judgment, in order to distinguish between the objective scope of the judgment and the effect of the determined fact, and the fact that the facts have been determined With respect to the pre-determined effect, when there is the opposite evidence in the post-litigation, the party is allowed to settle the dispute again, the court can confirm again; secondly, based on the provisions of the existing judicial interpretation, the scope and effect are clearly defined from the legislative level, and the operability of the judicial practice is provided; and finally, In the existing legislative system, the provisions of the supporting measures related to the established facts are improved, the professional level and the ability of the judge are improved, the writing of the judgment documents is regulated, and the judicial system of the judge is strengthened.
【學(xué)位授予單位】：河南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.1
本文編號：2449182
[Abstract]:The facts that have been determined are the facts that have been confirmed for the effective judgment of the people's court. The validity of the determined facts, which belongs to the category of the effect of the judgment, gives the pre-determined effect of the determined facts to be respected and maintained in all respects. In that present civil procedure law, there is no express provision on the "the fact that it has been determined", and only in the relevant judicial interpretation, the facts have been set, which is difficult to provide guidance for the judicial practice and provide a model for theoretical research; in the academic field, the scholars are based on the theory of the judgment force and the theory of evidence law. The theory of judicial cognition has formed a different theoretical framework from the angle of the proof force, the point-of-point effect, the middle sentence, the judicial cognition and the higher "public instrument", which is hard to say is the best way to deal with the fact problem in our country; in the judicial practice, On the basis of different legal thinking and logic, the judge has given different attribute positions, effects and relief measures according to different facts, which has not formed a unified approach. This system, which is in theory and the non-uniform current situation of the method in the judicial practice, is obviously not conducive to the solution of the problem and the dispute resolution function in the maintenance of the lawsuit. Based on the tradition of the rule of law in our country and the provisions of the existing statutory law, this paper is to make clear provisions on the attributes, scope and effect of the facts, and to perfect the relevant supporting measures to form a legislative path that is in line with the judicial practice of our country and to realize the value and function of the fact. The first part of this paper is the introduction to the question. According to the traditional theory of civil action, in addition to the counterbalancing, the objective scope of the judgment is limited to the main part of the judgment, but this does not mean that the judgment reason does not have any judgment effect. The fact that the judicial decision is based on the judgment of the judicial decision is an integral part of the effectiveness of the sentence and should have been weighed by the various aspects. However, in the academic field, the scholars have found different solution strategies based on different theoretical bases, and the differences in the theoretical research are difficult to probe into the fact system at the same level; the principle and the evacuation of the judicial interpretation In the judicial practice, the judge is based on different legal thinking, and the solution to the question of the fact is not unified. The second part, from the current situation of the system of the pre-determination of the fact of the civil judgment in our country, from the legislative and judicial explanation, the judicial practice, the existing theoretical research level, The principle and the abstract of the legislation makes it difficult to provide the applicable legislative norm for the application of the factual system; in the practical world, the judge is based on the different legal logic and the thinking, and there is a non-uniform legal interpretation for the processing of the determined facts; in theory In this study, the scholars based on different perspectives on the theoretical framework of the factual system, and also The validity of the determined facts is derived from the effect of the judgment, which should have been respected and maintained in all respects, but there are differences in the theory and the non-uniform current situation of the processing methods in the judicial practice, which is obviously not conducive to the solution of the problem and the value of the system. The third part is the necessity and feasibility of the research on the fact system of the civil judgment in our country, first, on the basis of the litigation efficiency, the stability of the law, the dispute resolution function of the lawsuit, the power-based litigation mode On the basis of the relativity of the pre-determined effect, the result of the procedure guarantee and the self-responsibility, the real pursuit of the law and the principle of punishment, the analysis of the correction is necessary. The concept of the value of the lawsuit and the structure of the system for judging the facts of the civil judgment in our country The fourth part is to compare and analyze the system theory of the existing problem of the effect of the fact, from the "point-to-point effect" theory, the point of struggle and the middle decision system, respectively. The scope, effect and legislative meaning of these systems are not in agreement with the essential characteristics of the established fact system. The fifth part is based on the above analysis, and the author tries to make a decision to our country On the basis of the general legal analysis of the fact that the civil judgment has been determined, the specific scope of the facts of the civil judgment in our country is defined. The nature and attributes of the decision-making. According to the structure of the judgment, the fact is found to be in the case of the judgment. The objective scope of the factual facts should be defined as the fact of the determination of the reason for the judgment, in order to distinguish between the objective scope of the judgment and the effect of the determined fact, and the fact that the facts have been determined With respect to the pre-determined effect, when there is the opposite evidence in the post-litigation, the party is allowed to settle the dispute again, the court can confirm again; secondly, based on the provisions of the existing judicial interpretation, the scope and effect are clearly defined from the legislative level, and the operability of the judicial practice is provided; and finally, In the existing legislative system, the provisions of the supporting measures related to the established facts are improved, the professional level and the ability of the judge are improved, the writing of the judgment documents is regulated, and the judicial system of the judge is strengthened.
【學(xué)位授予單位】：河南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.1
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本文編號：2449182
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