论任意的诉讼担当之法律构造

任意的诉讼担当是对传统当事人确定理论的突破,我国现行法对其的规定较为零散,范围过于狭窄,尚未形成完整的理论体系。究其原因,是因为受到传统当事人确定理论、律师代理制度及诉讼费用制度等限制因素的影响。德日台等大陆法系国家及地区以选定当事人制度和团体诉讼为中心,形成了较为成熟的任意的诉讼担当体系。我国应在完善当事人确定理论的基础上．以代表人诉讼为中心,引入团体诉讼制度,适当扩大任意诉讼担当的适用范围,重构我国任意诉讼担当的理论体系。

The Legal Structure of Discretional Undertaking

The discretional undertaking breakthroughs the traditional theory of parties determine .In our country , because of the traditional theory of parties determine ,lawyer agency system and litigation cost system, rules about it are very scattered .Its range is too narrow , and a complete theoretical system has not been formed yet .The countries of continental law such as Germany and Japan center on selected party system and group litigation, formed a relatively mature discretional undertaking system, we should base on the breakthroughs of the traditional theory of parties determine, center on the representative litigation, introduce the group litigation system ,expand the applicable scope of the discretional undertaking in our country,refactor the theoretical system of discretional undertaking in our country.