实体法：请慎入程序法之域——以民事责任竞合为例

在同一程序中就同一纠纷同时提起侵权之诉和合同之诉的起诉方式（重叠合并）广受排斥，然而实体法并不能为此提供依据。有侵权行为法建议稿中的责任竞合条文虽排斥这种起诉方式，但它们是自相矛盾的。从强化论证、法律具有不确定性、一次性解决纠纷等角度看，应准许甚至鼓励这种起诉方式。排斥重叠合并的深层原因是实体法与程序法的混同。可以在实体法中一并设立程序规范，但前提是已充分了解相关程序原理。

Substantive Law Should Keep Space with Procedure Law

The alternative joinder that plaintiff puts forward two kinds of cause of action concerning contract and tort is extensively excluded, however, substantive law cannot provide basis for it. Some articles in the drafts of Tort Liability Law reject alternative joinder, which was self-contradictory as well. From the view of strengthening demonstration, law＇s uncer- tainty, and so on, we should accept alternative joinder. The deep - seated reason of excluding alternative joinder is confusing substantive law with procedural law. Relevant procedural principle is to be familiar with before procedural role is established in substantive law.