訴權理論之新開展

New Development of Right of Action in Civil Procedure Rule

臺灣2020年民事訴訟法修正就訴權制度所為之改革，既與德、日兩國同法未設明文規定者不同，亦與法國同法所設規定者有所不同，實具本土化訴訟制度之特色。新法明認訴權為程序上權利，使其與實體私權有別；且於訴權要件欠缺而可補正之情形，經法院命原告補正而未補正者，始得逕以訴訟判決駁回其訴，以保護本案判決請求權。

The amendment of Taiwan Civil Procedure Rule in 2020 has made some changes considering the right of action. The new rules have their unique features and are unlike their counterparts of other nations: nether do the they resemble rules in Germany and Japan, for the civil procedure rules in Germany and Japan do not contain statutes regulating the right of action, nor do the they resemble rules in France, which do have certain statutes considering the right of action but have different content. The amendment has made a clear statement that the right of action are rights which derive from procedural rules, and distinguish them from rights that derive from substantive law. When procedural prerequisites are fail to be met but are possible to be met, the court should order the plaintiff to fulfill those prerequisites. Only if the plaintiff still fail to fulfill the prerequisites after the order can the court dismiss the case via adjudication. That way, people’s right of requesting the court to review his case can be asserted.