重複起訴規則視閾下部分請求的規制

Regulation of Partial Claims from the Perspective of Repeated Prosecution

司法案例表明實務通常以重複起訴規則規制部分請求，並輔之以利益衡量方法。部分請求的規制問題應當轉換學理研究視角，應以《民訴法解釋》第247條即重複起訴規則的規範檢視爲中心，繼而考量其他利益要素。重複起訴規則應拋棄訴訟請求要件，訴訟標的要件應回歸以請求權爲識別標準的舊實體法說，識別可參照《民法典》中的請求權基礎。實踐中，部分請求的典型類型在民事案由中集中表現爲合同糾紛及侵權糾紛，在以“當事人+訴訟標的”兩項重複起訴規則之要件檢視下應當否定部分請求的合法性。但是，圍繞重複起訴規則的法律規範解釋下，應當在以下幾種情形下例外允許部分請求的提起：一爲符合《民訴法解釋》第247條第2款之規定，即具有實體法的明確規定；二爲《民訴法解釋》第248條之規定，即存在新事實的情形，例如後續治療費；三爲依據不可預料說後訴不應受到前訴既判力拘束力情形下，例如後發性後遺症；四爲原告於前訴提起全部請求具有客觀困難情形下。

Judicial cases show that practice usually regulates part of the request with the rule of repeated prosecution, supplemented by a measure of interest. The regulation of some requests should be changed from the perspective of academic research, and should be centered on Article 247 of the Interpretation of the Civil Procedure Law, that is, the normative examination of the repeated prosecution rules, and then consider other elements of interest. The rules of repeated prosecution should abandon the elements of litigation, and the subject matter of litigation should return to the old substantive law theory that takes the right of claim as the identification standard, and the identification can refer to the basis of the right of claim in the Civil Code. In practice, the typical types of some claims are concentrated in contract disputes and tort disputes in civil causes, and the legality of some claims should be denied under the examination of the elements of the two repeated prosecution rules of "party + subject matter of litigation". However, under the interpretation of legal norms surrounding the rules of duplicate prosecution, some requests should be allowed to be filed in the following circumstances: first, it complies with the provisions of paragraph 2 of article 247 of the Interpretation of the Civil Procedure Law, that is, it has clear provisions of substantive law; The second is the provision of Article 248 of the Interpretation of the Civil Procedure Law, that is, the situation where there are new facts, such as follow-up treatment fees; Third, on the basis of unforeseeability, it is said that the subsequent litigation should not be bound by the res judicata of the previous appeal, such as the sequelae of the subsequent appeal; Fourth, when it is objectively difficult for the plaintiff to file all the claims in the previous action.