论中国民事判决效力扩张之反思与限定

大陆法系德日等国民诉立法及学说中的既判力、执行力等民事判决效力的扩张均有限定.而中国的相关司法解释及实务报道却表明中国判决效力扩张存在随意性.预决效力扩张了既判力客观范围,既判力相对性也未得到严格遵循,其有时会不当地向他人扩张;合伙组织清偿能力不足时将合伙人追加为被执行人,是执行力扩张的示例.这些扩张不仅与传统理论不符,也不利于特定主体的程序利益保障.为此应限缩判决效力的扩张.

Reflection and limitation of the extension of civil judgment effects in China

Extension of civil judgment effects, such as res judicata and enforceability is limited in Continental law countries, eg. Germany and Japan. However, China''s relevant judicial interpretations and legal practice reports indicates that the extension of civil judgment effects is reckless. Pre-decisive effect expanded the objective scope of res judicata, the relativity of res judicata has not been strictly followed, sometimes it improperly expanded to others parties outside the lawsuit; addition of the partners of a partnership as enforces, when the partnership organizations is not able to pay off its debt, is an example of the extension of enforceability. These expansions are not only incompatible with the traditional theory, but also not enough to provide procedural protects to particular party. Therefore, extension of civil judgment effects should be limited.