先訴抗辯權行使之程序展開

The Procedural Implementation of the Excersies of Benificium Ordinis

先訴抗辯權的核心是賦予一般保證人擔責順序利益，其制度價值需通過一系列程序機制予以實現。但法規範和法實踐中先訴抗辯權的行使異化為法院依職權適用，這種司法“父愛主義”理念導致先訴抗辯權行使程序規則嚴重缺失。先訴抗辯權異化行使的根源在於對先訴抗辯權基本性質的認知模糊甚至錯誤。故要進行先訴抗辯權行使程序之科學配置，首先需要厘清其理論前提：一般保證人順序利益實現的程序機制已由“先起訴”轉向“先執行”，先訴抗辯權的對抗對象是債權人的擔責請求權而非訴權或執行請求權，先訴抗辯權屬於權利抗辯之範疇，法院不能依職權主動適用；在此基礎上再系統建構攻擊防禦視角下的先訴抗辯權行使程序規則，統合先訴抗辯權主張階段的觀點分歧，明確先訴抗辯權主張要件和消滅要件及其證明責任。

The core of benificium ordinis is to endow the general guarantor with the sequential interests of responsibility, and its system value needs to be ensured through a series of procedural mechanisms. However, the exercise of benificium ordinis in legal norms and legal practice is dissimilated to the application by the court according to its authority, and this judicial ethos of 'fatherism' leads to a serious lack of procedural rules for the exercise of this right. The cause of dissimilation of benificium ordinis lies in the vague and even wrong cognition of the basic nature of it. Hence, to scientifically arrange the procedure of excerise, its theoretical premise should be clarified: the procedural mechanism of general guanrantor’s sequential interests has changed from ' action first' to ' execution first', and the object of benificium ordinis is the creditor's claim for liability rather than its right of action or claim for execution, meanwhile benificium ordinis belongs to the category of defense of rights, which can not be applied by the court on its own initiative; on this basis, the procedural rules of exercising benificium ordinis from the perspective of attack and defense could be systematically constructed, to integrate the disagreements on the claim stage, and to clarify the claim elements and elimination elements of the right and its burden of proof.