论债权人代位诉讼的诉讼标的

我国代位权制度对“入库规则”的放弃,对我国债权人代位诉讼的诉讼标的影响极大,现有的“一 诉讼标的说”和“二诉讼标的说”均难成立,应当采纳新诉讼标的理论和“争点效”理论来解决其诉 讼标的和判决拘束力问题,即债权人代位诉讼的诉讼标的是债权人提出的要求次债务人履行债 务的诉讼请求,而作为基础法律关系的债权人与债务人之间、债务人与次债务人之间的债权债务 关系,则因判决的争点效而具有约束力。

The Object of Litigation with Subrogation

The rule of subrogation of our country influences litigation with subrogation directly. The theory of one object and theory of two object can not be exited in our country. It is a more suitable method to solve this problem by accepting new theory of object of action and theory of effective of issue. According to the theories, the object of litigation with subrogation is the creditor's claim to subordinate debtor, and legal relations between the creditor and the debtor and legal relations between the debtor and the subordinate debtor should be restricted to the judgement of litigation with subrogation because of effective of issue.