禁止重复起诉规则之重构:以合同效力的职权审查为背景

我国对合同效力采依职权审查模式,据此作出的生效判决在主文外对合同效力的认定能产生禁止重复起诉的效果。由于不必全面审理潜在争点,大陆法系传统理论认为判决理由原则上不发生既判力。当任一方当事人明确请求确认先决关系效力时,上述两种思路均认可合同效力认定的既判力。我国应将合同效力作为审理焦点,并实现对依职权审查规则的实质化改造,要求法官作出包含既判力范围释明的明确标识。在判断依职权审查规则的既判力效果时,应进一步解释禁止重复起诉规则的要件。这种既判力理解不同于争点效理论并能提供更清晰的识别方案。

Reconstruction on the Rule against Relitigation: In the Context of the Judicial Review of the Validity of Contracts

Chinese judges are supposed to follow the model of examining the validity of civil contracts in any civil process sua sponte.Ordinarily,the identification of this validity,which does not locate in the operative part of the final judgment,also enjoys the res judicata effect of final judgments.In civil law traditions,since there is no need to review every related issue,the identification appearing only in the reasoning part of the judgment has no such effect.The res judicata effect of the identification of contract validity in the reasoning part will be acknowledged by both Chinese law and civil law traditions,if any party explicitly claims for the determination of preliminary legal relationship in the case.The Chinese court should consider the validity of civil contracts as disputed issues of its court hearing.Accordingly,the rule of judicial review of validity of civil contracts sua sponte could be substantially reformed,while it is procedurally necessary to demand the judge to give clear direction to the parties regarding the scope of res judicata effect.For the determination of the res judicata effect of this rule of judicial review,there should be further explanation of the legal requirements for relitigation.The aforementioned understanding of the res judicata effect is distinct from the theory of issue preclusion since this understanding could provide a much clearer solution for legal application.