起诉难:一个中国问题的思索
张卫平起诉难:一个中国问题的思索
Difficulty in Filing a Lawsuit: Thinking on a “ChineseIssue”
期刊名称：《法学研究》
期刊年份：
作者：张卫平
单位：清华大学法学院
中文关键词：民事诉讼;起诉;受理;司法政策
英文关键词：civil procedure;filing a lawsuit;acceptance;judicial policy
中文摘要：
我国起诉难问题主要源于我国特有的一种超法律规范的司法政策限制。这种司法政策限制主要是基于我国的现实状况、实质正义优先、传统意识以及治理习惯等因素。但这种调整以牺牲法律和司法的权威性以及法律的普遍性为代价，不利于我国的法治建设。在我国从传统法治转向现代法治的过程中，随着法律调整范围的扩大和法律体系的完善，这种政策性调整的适用应当逐步加以限制以至最终取消。
英文摘要：
This thesis analyzes the long-discussed issue of “difficulty in filing a lawsuit” in the area of civil procedure. This issue does not refer to the situation that the court cannot accept and hear a case due to its inconformity with relevant laws. It mainly refers to the situation that the court, considering some external factors, refuses to accept some cases which conform to the required conditions stipulated in laws, regulations and judicial interpretations. This thesis points out that one main reason of this issue is the judicial policy of our country which overcomes law.The judicial policy represents itself in civil jurisdiction as restriction and negativity. It means that judicial policy always restricts the acceptance of cases which are in line with the suing conditions. The court will restrict the acceptance of some cases, such as cases of illegal fund raising, infringement due to false information disclosed by listed company, bankruptcy disputes, tainted milk tort disputes, indemnification due to natural disaster such as earthquake, as well as cases that involve sensitive social, political and economic issues.The reasons for the restriction include the specialty of rule of law in our real society, the limited judicial system and judicial capacity under the specified power structure, the limited regulating scope and function of existing law, and pragmatism, relativism and particularism in consciousness and methodology. In the reality of China, such adjustment by judicial policy is relatively reasonable, for some controversies which concern legal disputes actually involve political and other social factors, which cannot be independently handled and solved by judicial departments. In our country, the influence of adjustment and regulation by law is very limited, and numerous social relations are regulated by administrative and policy-based rules. The status of judicial departments decides that they lack the capability of judging independently.However, the adjustment by judicial policy which overcomes law also bears high cost. It will obviously jeopardize the authority of law, and even sacrifice public’s faith and dependence on rule of law. The author believes that in the background of social transformation including the transformation of rule of law, the judicial policy restriction on filing a lawsuit would be limited gradually and finally terminated.
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