訴訟標的概念與重複起訴禁止原則——從德國法對訴訟標的概念的反省談起

Abstract

在德國民事訴訟法上，訴訟標的是一個核心的概念，藉由此概念體系的建構，關於訴之客觀合併、訴之變更、重複起訴禁止原則或既判力客觀範圍等訴訟制度可以一貫、穩定的運作。一併繼受德國訴訟標的概念的我國，向來以訴訟標的是否同一作為判斷民事訴訟法第二五三條之重要標準。然而，受限於訴訟標的概念架構，德國民事訴訟法第二六一條第三項第一款並無法充分發揮機能。相對於此，歐洲法院賦予歐洲管轄及執行公約第二十一條獨自的意義，創造核心理論以合理劃定禁止重複起訴規範的適用範圍，明確地不採德國訴訟標的概念。於德國學者深切反省其訴訟標的概念的同時，歷經世紀變革的我國民事訴訟法學亦有主張重複起訴禁止原則擴大論者。以此為契機，本文擬一面引介相關討論，一面指出我國訴訟標的概念與重複起訴禁止原則適用間應有之走向。

The “subject matter of the litigation” is a central concept in German civil procedure law. As a result of the construction of this systemic concept many procedural institutions should be steadily and consistently implemented, especially the rule of lis pendens. During the reception of German procedure law this concept wass also inserted both in Taiwan’s code of civil procedure and its procedural theories, while it has been proven that this concept is not adequate to let the rule of lis pendens function well. As opposed to the German model, the European Court of Justice interpreted Article 21 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters autonomously and teleologically. In response to this approach the Court created the so-called “subject-matter theory” and expressly rejected the German concept. It is therefore an urgent concern for German jurists to reexamine their tradition-based concept of subject matter of the litigation. At the same time it is advocated that the scope of lis pendens should be broadened in light of the centurial reform of Taiwanese procedure law. Inspired by these developments, this thesis intends firstly to present related discussions and secondly to point out the way which should be taken to correctly explain the relationship between the concept of subject matter of the litigation and the rule of lis pendens.