形成判決對世效：溯源與省思

形成判決對世效得到我國民事訴訟法學界的普遍認可，且具有較強的體系效應。我國的形成判決對世效理論繼受於德國法，但其在德國民事訴訟法學術史上素有爭議。論證形成判決對世效的理論可以歸納為四種學說:公法變動說、統一變動說、變動效果對世說、法定性說，它們都不足以證成形成判決對世效的正當性。無論是將對世效解讀為形成力對世，還是既判力對世，形成判決效力的主觀範圍都是訴訟法問題，應當以限定于當事人之間的相對性為原則。應當厘清形成力的概念，區分形成判決的私法效果與形成判決對後訴的拘束力。形成判決以相對效為原則，同時存在對世擴張和向特定主體擴張的情況。形成判決效力的主觀範圍的具體界定，取決於民事實體法規定了哪些形成之訴，因此本質上是一個法教義學問題。

The erga omnes effect of formative judgments (Gestaltungsurteile) is widely recognized in Chinese civil procedural law academia and has a strong systematic influence. The theory of the erga omnes effect of formative judgments in China is inherited from German law, but it has been a subject of controversy in the academic history of German civil procedural law. The theoretical justifications for the erga omnes effect of formative judgments can be summarized into four doctrines: the theory of public law change, the theory of unified change, the theory of erga omnes effect of change, and the theory of statutory character. However, none of these doctrines are sufficient to justify the erga omnes effect of formative judgments. Whether the erga omnes effect is interpreted as the erga omnes effect in the sense of formative force or the erga omnes effect in the sense of res judicata, the subjective scope of the effect of formative judgments is a procedural law issue and should follow the principle of relativity which is limited to the litigants. The concept of formative force should be clarified by distinguishing between the private law effect of formative judgments and the binding effect of formative judgments on subsequent lawsuits. The effect of formative judgments is relative in principle, with the existence of erga omnes expansion and expansion towards specific subjects. The specific determination of the subjective scope of the effect of formative judgments depends on which formative actions are stipulated by civil substantive law, thus essentially being an issue of legal dogmatics.