民事诉讼标的与民法请求权之关系研究

在请求权概念产生之前,罗马法尚以诉权为诉讼标的,民法请求权概念自其产生之时就与民事诉讼标的之间产生了密切的关系。早期只有给付之诉一种诉讼形态,人们认为诉讼标的就是民法请求权。随着请求权竞合现象不断出现以及确认之诉和形成之诉的产生,民法请求权和诉讼标的之间的关系开始剪不断理还乱,在不同的诉讼标的理论中,民法请求权地位各异。在当前各国学理、立法和实务的主流观点中,请求权仍然是给付之诉的诉讼标的。

On the Relationship between Object of Civil Litigation and Right to Petition in Civil Law

The right of action was the object of litigation in Roman Law before the introduction of the concept of right to petition.The right to petition,as soon as it emerged,had a close relationship with the object of civil litigation.Proceedings for payment or performance were the only form of litigation in the past,therefore people viewed the right to petition in civil law as the object of litigation.With the concurrence of right to petition and the emergence of interpleader cause and action of formation,the relationship between right to petition and object of litigation became complicated,and thus in different theories,the status of right to petition is different.Now the mainstream of legislative and practical theories of different countries still holds that the right to petition is the object of litigation in proceedings for payment or performance.