罗马法“诉”的理论及其现代发展

发布时间：2018-07-25 12:37

【摘要】：“诉”(Actio)是罗马法中的重要概念，是罗马法诉讼程序的核心，也是现代民事诉讼理论中“诉”的理论和“诉权”理论的共同起点。尽管现代大陆法系民事诉讼理论（尤其是德日民事诉讼理论体系）已经将“诉”的理论和“诉权”理论分开，作为彼此独立的两种理论系统，但是从“诉”的产生及其发展演变的历史角度上看，现代大陆法系“诉”的理论和“诉权”理论都与罗马法“诉”的理论有着密不可分的联系。罗马法“诉”的理论是由市民法之诉和裁判官法之诉共同构成的理论系统。罗马人不喜欢为创造而创造，而是一直注意着法律体系所产生的具体影响，并根据这些影响，以温和而符合逻辑的方式对法律体系进行完善。罗马人从来不偏离与具体案件和具体的法律生活所保持的和谐关系。在一个法律体系里，裁判官法之诉与市民法之诉共存。罗马裁判官通过在个案中否决当事人的诉权或者授予当事人一项诉权的方式在司法实践中回避或者改变了市民法，但表面上市民法并不受损害，因为罗马市民法本身仍表现为一种自在的和包罗万象的法律制度。裁判官的干预以裁判官的“治权”以及他在行使司法权时所拥有的自由裁量权为中心。罗马法“诉”的理论以解决“当事人因何可以提起诉讼”作为其设置的前提。原则上，“市民法之诉”遵循“有权利即有诉”的逻辑。但在某些情况下，当事人享有实体权利也未必能够诉诸法院，即“有权利未必有诉”。因为罗马裁判官有权剥夺当事人根据罗马市民法而享有的诉权。“裁判官法之诉”独立于“市民法之诉”。“裁判官法之诉”主要体现为“无权利亦可有诉”的逻辑结构。当市民法出现了立法空白，罗马裁判官通过行使“司法权”来赋予当事人一项诉权，使当事人的利益诉求能够获得司法保护。罗马法“诉”的理论是现代大陆法系民事诉讼理论体系的起点。罗马法“诉”的概念经过19世纪近代法学家的提炼与分解，演变为大陆法系民事诉讼理论中的“诉权”概念。大陆法系的“诉权”概念的发展先期是以“当事人因何向法院提起诉讼”，以及实体法和程序法关系的视角展开的。但是，在近现代权利观念的影响下，现代德国法和日本法的“诉权”概念已经跳出了传统的实体与程序关系的研究范畴，演变成为了公民应当享有的一项基本的宪法权利，可以说现代诉权理论的发展已经背离了最初的发展起点。不仅如此，在现代德国法和日本法中，“诉权”的原来功能已经被“诉”的理论替代，并发展出一套成熟的“诉”的理论体系。即现代德国法和日本法是以“诉的要件”理论来统摄诉的利益、诉讼标的、当事人适格等“诉”的理论内容。现代法国法的“诉权”理论走向与德国法有着不尽相同的发展方向。现代法国法的“诉权”概念并未将诉权抽象为一种客观的权利，它延续了罗马法“诉”的概念和特征，并以解决“当事人因何向法院提起诉讼”问题，以及协调实体法和诉讼法的关系作为其理论研究的基点与起点。可以说，法国现代民事诉权立法和民事诉权理论较为全面地体现了罗马法“诉”的原理。本文首先以《十二表法》、《裁判官告示汇编》、盖尤斯《法学阶梯》、优士丁尼《法学阶梯》和《学说汇纂》等罗马法原始文献的法文译本为基础，结合欧陆地区中世纪以来法学家对罗马法诉讼程序和诉讼理论的研究成果，对罗马法“诉”的理论进行了较为体系化的研究。其次，，在罗马法“诉”的理论研究基础上，本文从学术发展史的视角观察、研究罗马法“诉”的理论向大陆法系现代民事诉讼理论的转变过程。最后，本文对如何完善我国诉的理论提出若干探讨和建议。文章结构安排如下：第一篇“诉”的历史考察：对罗马法“诉”(Actio)的解读。该篇主要是从罗马法“诉”的角度研究了罗马法“诉”的理论构成，具体内容分为：罗马法“诉”的程序构造；罗马法“诉”的体系形成；罗马法“诉”的概念解析；罗马法“诉”的法律渊源；罗马法“诉”的晚期重构等五章内容。第一章，罗马法“诉”的程序构造主要探讨的是罗马法“诉”的法律审和事实审二阶段程序构造，并且研究了负责法律审的“罗马裁判官”和负责事实审的“罗马法官”所享有的“司法权”。第二章，罗马法“诉”的体系形成是对于不同时期罗马法“诉”的类型及其沿革过程的研究。第三章，罗马法“诉”的概念是通过对于罗马法“诉”的三层内涵的研究，即诉讼程序、诉权和主观权的这三层含义的研究，解读了罗马法“诉”的概念。第四章，罗马法“诉”的法律渊源主要研究的是“诉”的两个来源，即“市民法之诉”和“裁判官法之诉”，说明了这两种“诉”的类型分别代表着不同的“诉”的理论。第五章，罗马法“诉”的晚期重构主要研究的是优士丁尼改变了由古罗马法学家精心建构的“诉”的体系，以及这种改变带来的正面和负面影响。第二篇“诉”的历史演变：罗马法“诉”(Actio)之理论发展。这一篇主要是从“诉”的历史发展的视角，来研究罗马法“诉”的理论与现代大陆法系民事诉讼理论体系的关联性，并从比较研究的视角来分析现代民事诉讼理论中的德日体系和法国体系之间的联系与区别。罗马法“诉”的理论经过近代以来德国法学家和法国法学家的发展，已经形成了德国民事诉讼理论体系和法国民事诉讼理论体系。德国民事诉讼理论以“诉与诉的要件”为中心来建构其理论体系，并解决“当事人向法院提起的诉讼能否被受理”的问题，而法国民事诉讼理论体系则以“诉权与诉权要件”为中心来建构其理论体系，并以诉权理论来解决“当事人向法院提起的诉讼能否被受理”的问题。第三篇“诉”的现代发展：我国诉之理论的完善。该篇主要研究了罗马法“诉”的理论，以及在罗马法“诉”的理论基础上发展起来的大陆法系民事诉讼理论对我国民事诉讼理论的参考与借鉴意义。并提出了我国诉之理论研究应当从“诉的要件”理论角度来强化其体系性，以“诉的要件”来统帅诉的概念、诉的利益、诉讼标的、当事人适格等民事诉讼理论板块，使之成为一个联系紧密的有机整体，并且为了从理论上构建我国“诉的要件”的审查程序，本文提出了与诉的理论相关的起诉制度、审前准备程序和诉权保障制度的改革与完善。
[Abstract]:"Actio" is an important concept in the law of Rome. It is the core of the litigation procedure of Rome law. It is also the common starting point of the theory of "lawsuit" and the theory of "right of appeal" in the modern civil litigation theory. Although the theory of civil litigation in the modern continental law system (especially the civil litigation theory system of Germany and Japan) has already put the theory of "lawsuit" and "the right of appeal" to the theory of "lawsuit". As two theoretical systems of independence, the theory of "lawsuit" and the theory of "litigious rights" in modern continental law system are closely related to the theory of the "lawsuit" of Rome law.
The theory of "lawsuit" in the law of Rome is a theoretical system composed of the lawsuit of the civil law and the lawsuit of the referee. The Romans do not like to create it, but pay attention to the concrete influence produced by the legal system, and improve the legal system in a gentle and logical way. The harmonious relationship with specific cases and specific legal life. In a legal system, the litigation of the referee and the civil law coexists with the civil law. The magistrate of Rome has avoided or changed the civil law in the judicial practice by vetoing the litigant's right of appeal in the case or giving the party a right of appeal in the judicial practice, but on the surface of the citizens The law is not damaged because the civil law of the city of Rome itself is still shown as a free and universal legal system. The intervention of the magistrate is centered on the discretion of the magistrate and the discretion he has in the exercise of judicial power.
The theory of "litigant" in Rome law is the premise of setting up the "litigant can bring a lawsuit". In principle, "the lawsuit of the civil law of the city" follows the logic of "having the right to sue". In some cases, the litigant may not be able to resort to the court, that is, "there is no right to sue" because of the Rome umpire. The official has the right to deprive the litigant of the right to appeal in accordance with the civil law of the city of Rome. "The lawsuit of the official law of the referee" is independent of the "lawsuit of the civil law of the city". "The lawsuit of the referee's official law" is mainly embodied in the logical structure of "no right or prosecution". When the legislative blank of the civil law has appeared in the civil law of the city, the magistrate of the city has given the "judicial power" to endow the parties with the law. The right of action can protect the interests of the parties.
The theory of "lawsuit" in the law of Rome is the starting point of the theoretical system of civil litigation in the modern continental law system. The concept of "lawsuit" in the law of Rome has evolved into the concept of "right of appeal" in the civil litigation theory of the civil law system in the civil law of the continental law system in nineteenth Century. However, under the influence of the modern concept of right, the concept of "right of appeal" of modern German law and Japanese law has jumped out of the research category of the traditional relationship between entity and procedure, and has evolved into a basic constitutional right to which citizens should enjoy, which can be said. The development of the theory of modern litigious rights has deviated from the original starting point of development. Not only so, in the modern German law and Japanese law, the original function of the "right of appeal" has been replaced by the theory of "Prosecution", and has developed a set of mature theory system of "lawsuit". The theoretical content of "litigation", such as interests, object of litigation, and the right of the parties.
The "right of appeal" theory of modern French law has different direction of development from German law. The concept of "right of appeal" in modern French law does not abstract the right of appeal as an objective right. It continues the concept and characteristics of the "lawsuit" of Rome law, and solves the problem of "how the parties bring the lawsuit to the court", as well as the coordination entity. The relationship between law and procedural law is the basis and starting point of its theoretical research. It can be said that the French modern civil litigious rights legislation and the theory of civil litigious rights reflect the principle of "Rome law" in a more comprehensive manner.
This article first is based on the twelve table method, the assembler of the magistrate, Gaius's law ladder, the French version of the original documents of Rome law, such as the estini "law ladder >" and "the codification of the doctrine", and the theory of Rome law litigation and litigation theory by the jurists since the middle ages of the European land, and the theory of "Prosecution" of the Rome law. Secondly, on the basis of the theoretical study of Rome law "lawsuit", this article studies the transformation process of the theory of "lawsuit" of Rome law to the modern civil litigation theory of continental law system from the perspective of the history of academic development. Finally, this paper puts forward some suggestions and suggestions on how to perfect the theory of our country's lawsuit. The arrangement is as follows:
The historical investigation of the first "lawsuit": the interpretation of the "Actio" of the law of Rome. This article mainly studies the Theoretical Constitution of the "lawsuit" of the law of Rome from the angle of the "lawsuit" of the Rome law. The specific contents are divided into the procedural structure of the "lawsuit" of the Rome law, the systematic formation of the "lawsuit" of the Rome law, the concept of the "lawsuit" of the Rome law, and the Rome of the Rome law; Rome The legal origin of the law "Sue" and the five chapters of the late reconstruction of the "lawsuit" of Rome law. The first chapter, the procedural structure of the "lawsuit" of Rome law mainly discusses the two stage procedure structure of the legal trial and the fact trial of the Rome law, and studies the "Rome magistrate" responsible for the legal trial and the "judge of Rome" responsible for the fact. The second chapter, the second chapter, the formation of the system of "lawsuit" of the law of the Rome law is the study of the type and evolution of the "lawsuit" of the law of Rome in different periods. The concept of the "lawsuit" of the Rome law is the study of the three layers of the connotation of the "lawsuit" of the Rome law, namely, the three meanings of the litigation procedure, the right of appeal and the right of the subjective. In the fourth chapter, the legal origin of the "lawsuit" in Rome law mainly studies the two sources of the "lawsuit", that is, "the lawsuit of the civil law" and "the lawsuit of the referee official law", which shows that the types of the two kinds of "lawsuit" represent the different "lawsuit" theory, the fifth chapter and the late Rome law "lawsuit". Reconstruction is mainly about the change of the system of "litigation" carefully constructed by ancient jurists in Rome, and the positive and negative effects brought about by this change.
The historical evolution of the second "lawsuit": the development of the theory of "Actio" in Rome law. This article is mainly from the perspective of the historical development of the "lawsuit" to study the relation between the theory of "lawsuit" of Rome law and the civil litigation theory system of modern continental law system, and analyze the German and Japan in the modern civil litigation theory from the perspective of comparative study. The relation and difference between the system and the French system. After the development of the German jurists and French jurists, the theory of the Rome law has formed the German civil litigation theory system and the French civil litigation theory system. The German civil procedure theory centers on the theory of "the requisites of prosecution and prosecution". And to solve the problem of "whether the litigant litigant brought to the court can be accepted", and the French civil litigation theory system takes "the right of appeal and the right of appeal" as the center to construct its theoretical system, and to solve the problem of "whether the litigant litigant brought to the court can be accepted" by the theory of litigious rights.
The modern development of the third "lawsuit": the perfection of the theory of the lawsuit in China. This article mainly studies the theory of the "lawsuit" of Rome law, and the reference and reference of the civil litigation theory of the civil law system developed on the basis of the theory of "lawsuit" in Rome. From the angle of "the requisites of prosecution", the system is strengthened, the concept of commander in command, the interests of the lawsuit, the subject of litigation, the litigant, and so on, make it a closely linked organic whole. The prosecution system related to the theory of litigation, the pre trial preparation procedure and the reform and improvement of the right of action protection system.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D926;D904.1

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