代位诉讼中的适格当事人研究

理论上之所以对代位诉讼存在着诸多分歧,是因为没有廓清代位诉讼的真正含义,本文采用的纯粹代位诉讼这一概念实际是本质意义上的代位诉讼。代位诉讼的当事人适格的基础是法定的纠纷管理权;债务人作为无独立请求权第三人参加诉讼;诉讼标的是债务人与次债务人之间的法律关系;债务人受既判力的拘束,既判力的客观范围是债务人与次债务人之间的法律关系,关于代位权存否则适用“争点效”理论。

The Proper Party in Litigation with Subrogation

In theory, the reason why there are so many disagreements in litigation with subrogation is that the real meaning of the litigation has not been clearly delineated. This article introduces the concept of pure litigation with subrogation to show its substantial meaning. The eligibility of the proper party in the litigation lies in the statutory power over disputes. The status of the debtor in the litigation is as a third party without independent claims. Other than the debtor, the sub-debtor is claimed in the action. The debtor's claims are precluded under res judicata. Res judicata applies to the legal nexus between the debtor and sub-debtor. This author suggests that the doctrine of "preclusion effect of contentious judge opinion" be adopted in litigation with subrogation.