民事诉权制度:一种私权的公力救济

民事诉权作为私权的公力救济路径集中展现了宪法的永恒命题,它涉入私权空间范围及其程度折射出私力救济与公力救济之间的辩证博弈;民事诉权介入私权空间的正当性源于私力救济的有限性和公力救济的有效性;民事诉权介入私权空间的程度决定于私力救济的有效性和公力救济的有限性;在宪法框架内私力救济和公力救济达致和谐的配比。

An Analysis of Right to Sue From the Angle of Constitutional Jurisprudence

As an important access to public remedies for private rights,the right to sue is an eternal theme in constitutional jurisprudence.It is so deeply and extensively involved in private rights that one can readily trace the dialectical relationship between private remedies and public remedies.The interference of right to sue in private rights is justified on the ground that private remedies are limited while public remedies are comparatively effective.How far the right to sue interferes in private rights depends on the effectiveness of private remedies and the limitation of public remedies.Thus,where private remedies become proportional to public remedies in the constitutional framework,a rational system of right to sue will be built up.