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| 诚实信用原则与争点效关系之探讨 |
| Discussion on the relationship between the principle of honesty and credit and the effect of competition |
| 投稿时间：2019-02-28 修订日期：2019-12-26 |
| DOI： |
| 中文关键词: 既判力 争点效 诚实信用原则 |
| English Keywords:Responsibility, efficiency, honesty and credit |
| Fund Project: |
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| 中文摘要: |
| 争点效具有与既判力相互协调和实现 “纠纷解决的一次性”理念之机能。争点效受其生效要件之制约,从诉讼法之视角来看,仅适用争点效还不足以实现纠纷的一次性解决。2012年《民事诉讼法》修正将诚实信用原则予以法定化、明文化,但因缺乏统一明确的适用标准,其适用过于依赖法官之自由裁量,对当事人非诚信诉讼行为之认定,易出现“同案不同判”之现象。争点效是将诚实信用原则予以制度化的理论,两者具有密切联系,通过对两者的产生原因、适用条件、机能及适用存在之问题进行逐项分析,明确两者之间具有交融、差异与衔接之关系,对于纠纷的妥善解决应具有积极的理论指导意义。 |
| English Summary: |
| The dispute has the function of coordinating with the judgment and realizing the “one-off” concept of “discrimination”. The contention of disputes is constrained by its entry into force. From the perspective of procedural law, the application of disputes alone is not enough to achieve a one-off resolution of disputes. In 2012, the Civil Procedure Law amended the principle of honesty and credit to be legalized and cultured. However, due to the lack of uniform and clear applicable standards, its application relied too much on the discretion of judges, and the identification of non-integrity litigation by parties was prone to “same”. The phenomenon of different judgments. The argument for efficiency is the theory of institutionalizing the principle of good faith. The two are closely related. Through the analysis of the causes, applicable conditions, functions and applicable problems of the two, it is clear that there is harmony and difference between the two. The relationship with the connection should have a positive theoretical guiding significance for the proper settlement of disputes. |
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