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萨维尼将民事诉讼法分为诉讼程序规范和实质诉讼法,并对之以公法和私法加以区别,将实质诉讼法当作其创建的现代罗马法体系的重要组成部分。萨维尼以实体诉权理论(私法诉权说)为基础,运用动态分析方法,按照诉权与抗辩权、争讼程序(争点决定)、既判力、替代判决、权利恢复之顺序构建了实质诉讼法体系。从法系意识论上考察,实质诉讼法理论曾对法国法、苏联法影响甚极,又通过苏联法对我国民事诉讼法理的形成和发展产生过重大影响。但由于诸多原因,我国民事诉讼法学没有着实接受苏联法学的实体诉权理论,以致沦为只见“诉讼程序”而不见“诉讼实体”的诉讼程序法学。本文藉萨维尼实质诉讼法理论之初介,图我国民事诉讼法学之再定位,通过树立以诉讼程序和诉讼实体相结合的民事诉讼法律现象为研究对象的民事诉讼法学,使之得以自我完善和发展,同时也为提升我国民法典编纂的品质作出其应有的学术贡献。
Savigny divides the civil procedure law into the procedural norms of procedure and the substantive procedure law, distinguishes it from the public law and the private law, and treats the substantive law of procedure as an important part of the modern Roman law system it created. Based on the theory of substantive right of action (private lawsuit right), Savigny constructed a system of substantive procedural law in the order of right of action and defense, procedure of dispute (decision of dispute), res judicata, alternative judgment and restoration of rights based on the dynamic analysis method. From the perspective of legal system theory, the substantive procedural law theory had a great impact on the French law and the Soviet law, but also had a significant impact on the formation and development of the civil law jurisprudence in our country through the Soviet law. However, due to many reasons, the law of civil procedure in our country did not really accept the substantive right of the Soviet Union theory of lawsuit, resulting in reduced to only see “litigation ” and “litigation entity ” litigation jurisprudence. This article, based on the introduction of Savinny’s theory of substantive procedural law and the relocation of China’s civil procedure jurisprudence, establishes a civil procedural law based on the combination of litigation procedure and litigation entity, Development, but also to enhance the quality of our country’s codification of civil code make its due academic contribution.