民事審判中的非訟事件訴訟化現象及克服

Litigation Phenomenon of Non- Litigation Events in Civil T rial and Its Overcoming

與德日等國家及地區的訴訟事件非訟化趨勢相反，我國民事審判中對非訟事件訴訟化存在著嚴重的路徑依賴。這種現象不僅導致審判成本增加從而嚴重地浪費審判資源，而且易於使民商法等實體法規範的目的落空。2021年12月底民事訴訟法修改時採取的繁簡分流措施，以及理論上提出的訴訟程序和非訟程序交錯適用方案均不能克服這種現象。當下較為有效的措施應當是制定非訟事件程序法，確立非訟程序異於訴訟程序的獨立原則和制度，以實現被訴訟化的非訟事件的回歸。

Contrary to the trend of non-contentious proceduralized of contentious cases in Germany, Japan and other countries and regions, Chinas civil trial relies heavily on the path of contentious proceduralized of non- contentious cases. This not only causes an increase in trial costs, thereby seriously wasting trial resource, but also easily leads to the failure to achieve the purpose of substantive law norms including the Civil and Commercial Law. Neither the measure of sorting complex and simple legal cases adopted by the revision of the Civil Procedure Law amended at the end of December 2021, nor the theoretical scheme of the interleaving use of contentious procedure and non- contentious procedure, could not overcome this phenomenon. At present, the most effective measure is to enact the non-contentious procedure law, establish independent non-contentious procedural principles and systems that are distinct from contentious procedure, so as to realize the return of non- contentious cases which have been proceduralized.