诉讼契约的生效与救济  

The Validity and Relief of Litigation Contract

作　　者：张嘉军[1] 

机构地区：[1]郑州大学法学院,河南郑州450052

出　　处：《河北法学》2010年第2期104-109,共6页Hebei Law Science

基　　金：法治建设与法学理论研究部级科研项目<民事诉讼契约研究>(07SFB3019)的阶段性研究成果

摘　　要：私法性质诉讼契约之生效需具备实体上有关要件,诉讼性质诉讼契约之生效需具备一定的诉讼法上之要件。诉讼契约在达成过程中存在瑕疵时,对于私法性质诉讼契约依据实体上有关规定予以救济,对于诉讼性质诉讼契约依照诉讼行为瑕疵救济的方式予以救济。基于当事人诉讼上的抗辩,对于诉讼性质诉讼契约之违反,法院依照双方约定的有关程序继续进行或者对双方约定的诉讼行为直接予以认可;对于私法性质诉讼契约之违反,法院在审查双方关于实体部分的合意是否合理履行基础上判定该违反行为是否有效。Validity of the litigation contract which has attribute of private law must satisfy the required statutory conditions. Validity of the litigation contract which has attribute of proceedings should satisfy the required procedural conditions. When there are some flaws in the process of forming litigation contract, about the former, we can give some relief according to the substantive law,with regard to the latter ,we can take some measures such as withdrawing the litigation contract with flaws, ratisfying the compact act with flaws, rectifying the procedural compact act with flaws and so on to give some relief. In the light of right of the pleading which parties enjoy in the process of litigation,if both or either of both parties violates litigation contract with proceeding nature, the court will continue action or validate directly the litigation act on which both parties agree according to the agreement that both parties have reached. However, if both or either of both parties breaks the litigation contract which has attribute of private law, the court will award validity of the illegal act according to the result of the review whether both parties perform reasonally the substantive agreement that they have reached or not.

关 键 词：诉讼契约 生效要件 瑕疵救济 违约救济 

分 类 号：DF71[政治法律—诉讼法学]