作為訴訟行為的送達

Service As an Act of Suit

送達與正式通知幾乎同義表明我國送達制度傾向於通知的實效性，但其可行性又因缺乏分級制度而導致擬制送達的濫用。送達制度應依托我國相對成熟的民事訴訟法律關係理論、民事訴訟行為理論和民事裁判效力理論。各訴訟主體在不同程序環節就送達這一訴訟行為所承擔的角色義務與相應權利，所遵循的行為規範和有效要件，都是在中國式的職權主義與辯論主義妥協模式的邏輯框架內展開的；應以相應事實的證明與推定規範，結合送達與受送達的行為代理與法律擬制，確定通知與送達的法律效果與瑕疵救濟，從而在送達規範的實效性功能之不可欲與儀式性功能不可靠的兩難困境之間謀求合理平衡。

In China, service seems to underline effective notice but is proved to be practicable for lack of classification rules so that the form of 'service of legal fiction' is largely abused. The norms of services of process should established under the doctrines of civil procedural action and judicial effect. According to the procedural legal relationship among the court and the litigants, each of the subjects shall take its legal role in the various stages of the proceedings and is entitled according rights or / and duties, including issuing, servicing or accepting various notices. These actions, just like the other procedural behaviors, may be operated in different stages and for classified objectives; while an effective service shall be proved to satisfy the requirement under the law that logically keep pace with Chinese style coordination Litigation Mode. Moreover, the norms shall keep a balance between effective function of service, which is infeasible, and its ritualization function which is not reliable. The provisions of service shall pay attention to the proof and illation of the fact of either the form or the consequence of the notice which is related to its classification. All these rules, combined with the other rules such as agent of delivery or acceptance, and service of legal fiction, shall decide or impact the legal effect of a notice and remedy of a service.