論民事訴訟和解之效力

On the Settlement of Civil Litigation

張文郁(Chang, Wun-Yu)

訴訟和解之性質 ； 和解標的 ； 訴訟標的 ； 和解之效力 ； 與確定判決相同之效力 ； the Nature of the Settlement of the Litigation ； Matter of the Settlement ； Matter of the Suit ； Effect of the Settlement ； the Same Effect as Determining the Judgment

輔仁法學

67期（2024 / 06 / 01）

167 - 237

繁體中文;英文

依民事訴訟法之規定，訴訟和解係原告與被告於訴訟繫屬中，在受訴法院、審判長、受命法官或受託法官之前，就訴訟標的之全部或一部以終結訴訟並解決實體權利爭執之意思，互相讓步而締結之（實體以及）訴訟契約。訴訟和解主要具有兩項作用，其一為終結訴訟關係，其二則為合意解決當事人間之實體權利爭議。由於前者涉及訴訟關係，具有訴訟法之性質，而後者則針對實體權利、義務，是以具有實體法之性質，因此，訴訟和解同時具有實體法及訴訟法兩元性質。然而，訴訟和解屬於當事人針對訴訟標的所締結之契約，和法院就訴訟標的所為之判決係屬於國家高權之司法行為不同，存在本質上差異。民事訴訟法第三八零條第一項規定，訴訟和解與確定判決具有同一之效力，此規定理論上不無商榷之處，蓋不應將契約性質之訴訟和解之效力規定為具有與確定判決相同之效力，以致在訴訟法理論及實務操作上出現適用之疑義，例如在分割共有物訴訟之訴訟和解，是否亦應具確定判決之效力，即有問題。此種規定令實務操作產生難以解決之爭議，應有修正之必要。

A settlement of litigation is according the civilproccedural Code concluded between the plaintiff and the defendant in the litigation system, before the court sued, the presiding judge, the appointed judge or the entrusted judge, with respect to each other's concessions (substantive and) with the intention of ending the litigation and resolving the dispute over substantive rights (substantive and) before the court sued, the presiding judge, the appointed judge or the entrusted judge deed of Litigation. Litigation settlement has two main functions, one is to terminate the litigation relationship, and the other is to resolve the substantive rights dispute between the parties by consensus. Since the former involves litigation relationships and has the nature of procedural law, while the latter has the nature of substantive law for substantive rights and obligations, litigation settlement has the dual nature of substantive law and procedural law. However, litigation settlement is a contract concluded by the parties against the subject matter of the litigation, and there is a fundamental difference between the judgment made by the court on the subject matter of the litigation and the judicial act of the high power of the state. Paragraph 1 of Article 380 of the Civil Procedure Law stipulates that litigation settlement and determination judgment have the same effect, and this provision is not without debatable in theory, and it should not stipulate that the effect of litigation settlement of a contractual nature has the same effect as that of determining a judgment, so that doubts arise in the theory and practice of procedural law, such as whether litigation settlement in a litigation for the division of common property should also have the effect of determining the judgment, that is, there is a question. Such provisions make it difficult to resolve disputes in practice, and amendments should be necessary.