请求权竞合论:以诉之选择性合并为归宿

请求权竞合问题由来已久,产生于actio体制的分离过程中。为了解决这个问题,民法表现为两种态度,一者为直面之,并寻求规范适用上的先后;一者则径直加以否认,视之为基础或规范竞合。相反,在民事诉讼领域中,围绕此问题引发了旷日持久的诉讼标的论争,最后以德国采用二分肢说,日本采用一分肢说加以解决。我国实体法径直要求当事人起诉时作出选择的方法弊端丛生,诉的选择性合并理论可以提供一种最优的解决方案。

Overlapping of Claims: Taking Joinder of Chosen Claims as the Solution

Overlapping of claims has become a hoary problem that originated in the process of separation of actio,as to solution of which two attitudes can be found in the civil law circle:the positive one seeking for rules to determine the superiority and the negative one taking it as a basic overlapping or an overlapping of norms.However,a relevant ever-lasting debate around the subject matter of the action was triggered out and ultimately ended with the German and Japanese resolutions differing with each other.In China,the substantial law requires that the litigator to make a choice while filing the petition and indeed joinder of chosen claims may serve as a best solution to the problem.