回到抽象的诉权说
严仁群回到抽象的诉权说
Returnto Abstract Theory of Right of Action
期刊名称：《法学研究》
期刊年份：
作者：严仁群
单位：南京大学法学院
中文关键词：附条件诉权说;抽象诉权说;司法行为请求权说
英文关键词：theory of conditional right of action;theory of abstract right of action;theory of right of demanding judicial action
中文摘要：
为诉权附加要件会导致其名不副实、无意义并隐含悖论。这是附条件诉权说的重大、致命缺陷。在程序伊始，法院面对的是“无知之幕”。要正当地走出这种状态，要给权利人以救济，就必须接受所有原告的起诉，对所有程序和实体事项的审理都应当在程序内进行。所以，不附要件的抽象诉权说有其深刻的内在合理性。作为修正型的抽象诉权说，司法行为请求权说能够应对针对抽象诉权说的所有批评，且有更多实益。基于抽象的诉权说，诉权与诉讼要件、裁判请求权等的关系能够厘清。
英文摘要：
It has been insisted that right of action should have some conditions, but attaching one or more conditions to right of action would make it unworthy of its name, meaningless, and paradoxical. Those defects are severe and fatal. All the theories of conditional right of action should be abandoned, even if they regard right of action as a human right or argue it to be a constitutional right. At the beginning of litigation, court is in the state of ignorance. It must accept a case unconditionally and hear all the procedural and substantial issues in due process. For this reason, theory of abstract right of action, which does not annex any requirement to right of action, has inherent rationality. Most of criticism to it is unreasonable. It can strongly sustain remedy to right of action and truly highlight the defect of setting conditions for filing and accepting a case. Theory of right of demanding judicial action does not attach requirement to right of action either, but it is a revisionary abstract theory of right of action, which makes up the defect of the theory of abstract right of action and has more practical significance.By the two kinds of abstract theory, we can clarify the relationship between right of action and condition of making substantial judgment, right to judicial verdict. The right of action contains only two kinds of right, i.e., unconditional right to bring an action, and right of demanding impartial judicial trial. We should wipe off the heavy burden on right of action exerted by theories of conditional right of action and return to abstract theory of right of action.
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