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诉讼契约作为通过当事人合意而发生诉讼法上效果的诉讼行为,是最能体现当事人主体性的制度之一。在一般性认可诉讼契约合法性的前提下,尚需建立完善的技术规则,以妥善安排当事人意思自治与程序安定之间的关系,其中以诉讼契约的适用范围以及效力为重点。就诉讼契约的适用而言,当事人得就可自由处分事项订立诉讼契约,并遵循确定性规则以及对格式条款的特别规制,以满足诉讼契约的公平性要求。就诉讼契约的效力而言,只需认可诉讼契约的负担效,探讨诉讼契约的处分效并无实益。诉讼契约只有在当事人提出时法院尚可进行斟酌,法院无须依职权调查,必要时通过释明行为来妥善安排当事人的自由处分及实质平等。
Litigation contract, as the litigation action that takes effect through procedural law through the parties’ intentions, is one of the systems that can best embody the subjectivity of parties. Under the general recognition of the validity of the litigation contract, it is still necessary to establish a sound technical rules to properly arrange the relationship between party autonomy and procedural stability. The focus is on the scope and effectiveness of the litigation contract. As far as the application of the litigation contract is concerned, the parties may enter into a litigation compact on the matter of free disposal and follow certain rules and special regulations on the format clauses to satisfy the fairness requirements of the litigation compact. As far as the validity of the litigation contract is concerned, it is not necessary to approve the burden burden of the litigation contract and to investigate the effectiveness of the litigation contract. The litigation contract can only be considered by the court when it is filed by the parties. The court does not need to investigate according to his or her functions and powers and properly arrange the parties’ free disposals and substantive equality if necessary.