扩张与限制：民事诉讼程序保障新论-诉讼法学专业论文.docx

PAGE PAGE VI 讼程序保障的立法和司法实践来看，程序保障机制经历了萌芽、初创和发展三个时 期，程序保障正逐步成为民事诉讼的重要理念，引导着民事诉讼不断向着现代化的 方向发展。但在这发展的过程中，很多问题在当前也渐次暴露出来，其中最明显和 最突出的问题是在我国目前的民事诉讼当中呈现出程序利益保障不足和程序利益保 障过剩并存的局面，主要表现为起诉难与主动司法并存、诉讼程序简与诉讼程序繁 并存、合作不足与对抗有余并存、非正式制度的正式运作与正式制度的非正式运作 并存、诉讼权利滥用与诉讼权利缺乏保障并存，造成这局面的原因可从国家和社会 两个层面进行寻找。在完善我国民事诉讼程序保障机制时应坚持多元合理主义，应 做到学习外国与挖掘传统兼顾、专业司法与司法民主兼顾、促进公正与提高效率兼 顾、程序利益与实体利益兼顾、个体负担与社会负担兼顾、原告利益与被告利益兼 顾。为扩张民事诉讼程序保障机制，我国应强化一审裁判程序和充实诉讼调解程序。 同时，我国民事诉讼应限缩上诉程序和抑制再审程序，以避免程序保障过剩。 关键词：民事诉讼；程序保障；程序利益；诉讼权利；多元合理主义 Abstract Generally, procedure guarantee is an inherent problem comes from the civil litigation. In other words, there is litigation, there will be procedure and the procedure guarantee will also be involved. At the very beginning, the legitimacy of the procedure, i.e., due process problems, had not been realized, and only the problems of entity benefits guarantee had been concerned about. The so-called procedure guarantee was only a subconscious problem. But with the development of society and the improvement of peoples understanding of the litigation, the due process problems have received considerable attention. People began to pay attention to the problems of procedure benefits guarantee, even in some western countries the procedure benefits have been considered more important than entity benefits. At this time, the theory of procedure guarantee formally set foot into the research field of vision. However, the excessive attention to the procedure benefits had also generated many problems, such as delay in court trial. At this time, although due process had been concerned about, it didn’t reflect the subjectivity and intersubjectivity of parties at all or it didn’t reflect these enough. Still later, more attention had been paid within the due process to the partys subjectivity, intersubjectivity and procedures diversity, and the guarantee of the parties have begun to balance the entity benefits and procedure benefits, and taking into account the parties’ interests and the public’s in