論當事人之變更追加—以請求基礎事實同一為中心

我國民訴法於2000年修正時參考日本民訴法第143條，增訂第255條第1項第2款之「請求之基礎事實同一」為訴之變更追加事由。然而由於當事人變更、追加並不被解釋為日本民訴法第143條的適用範圍，因此向來對於此款是否得作為當事人變更、追加之事由，迭有爭議。雖然此點爭執在最高法院106年第13次民事庭決議與司法院修正民訴法草案第446條所揭示的肯定立場後，似可認為已告解決。惟有鑒於其並未根本性地說明當事人之變更追加的法律性質，並且向來研究並未充分探討在第2款與第5款在當事人變更、追加的適用之關聯，又草案若是通過，則涉及應如何實質判斷審級利益之保障的問題。準此，本文以民訴法之當事人變更追加制度整體為研究對象，以釐清上開爭議。本文首先認為關於當事人變更追加之法律性質，應屬訴之變更追加。蓋文義解釋上第255條係指「訴」之變更，且立法解釋上第255條係為了擴大紛爭解決之機能，而未限制於客觀的訴之變更追加；體系解釋上，255條係一概括規定，且同條第1項第5款作為例示規定，可觀察出其他各款亦得作為當事人變更、追加之事由。因此解釋上當事人變更、追加以第255條為適用基礎並無疑問。在當事人變更方面，本文以表示說為當事人確定之理論，並檢證我國實務上有部分見解係混淆了當事人變更與當事人更正/補正之差異。關於當事人變更之要件，則認為原告應有撤回舊訴與提起新訴之意思；被告部分則依第262條第1項，視有無行言詞辯論程序判斷是否應取得被告之同意，否則即可以第2款、第4款或第7款取代被告之同意為變更。至於當事人變更之效果，應透過給予新當事人充分的舊訴訴訟狀態資訊與舊訴之聽審請求權有無受保障判斷，以建立舊訴訴訟狀態拘束新當事人之程序正當性。在當事人追加方面，本文認為若是訴訟標的有合一確定之必要，不論係固有或類似必要共同訴訟，皆得適用第5款為當事人之追加。而介於類似必要共同訴訟與普通共同訴訟的中間類型，例如連帶債務、連帶保證債務或者擇一義務之共同訴訟，，因爭點上雖有合一確定必要，然而可類推第5款為追加。由於其同時在合一確定必要之爭點的審理上有重複利用訴訟資料之可能，故應亦得依第2款為追加。要之，請求基礎事實同一作為獨立於共同訴訟之法律概念，可解決中間類型的共同訴訟人之追加。在此之外的普通共同訴訟，則無需考量第5款之適用，以第2款、第7款判斷得否追加即可。而在效果方面，從日本法合併辯論制度的啟發來看，亦應重視新當事人之聽審請求權有無於舊訴受到保障，否則應賦予爭執舊訴訴訟狀態之機會。最後，在第二審之當事人變更、追加（，特別是被告）之變更、追加，應注意新當事人的審級利益保障。雖然在訴訟標的有合一確定必要時，統一解決紛爭之程序要求優先於當事人之審級利益；但是在訴訟標的無合一確定必要之情形，例如類推適用第5而依款、第2款與第7款為當事人變更、追加時，新當事人將欠缺第一審之審級利益，其程序利益狀態與第一審之變更、追加時有所不同，甚或欠缺上訴第三審之機會。本文認為若是新當事人未同意第二審之變更、追加，則應判斷客觀上是否有獨立於第一審之爭點存在，主觀上是否已有機會參與第一審之審理。除了「無獨立爭點且有機會參與第一審之審理」之外，皆不得在新當事人未同意之前提下為當事人變更、追加。

關鍵字

當事人變更；當事人追加；請求之基礎事實同一；訴訟標的合一確定必要；審級利益保障

並列摘要

The Amendment of Article 255 Paragraph 1 Subparagraph 2 of Code of Civil Procedure in Taiwan refer to Article 143 of Code of Civil Procedure in Japan, which was amended as” Where the amendment or addition of the claim is based on the same transaction or occurrence”. However, the amendment or addition of parties cannot be based on Article 143 of Code of Civil Procedure in Japan. That is to say, whether Subparagraph 2 can also be the legal basis of the amendment or addition of parties has been controversial. It appears that the dispute was eventually settled after the announcement of the Supreme Court 2017 No.13 Civil Court Resolution and the Draft Revision of Code of Civil Procedure submitted by Judicial Yuan, indicating that Subparagraph 2 can also be the legal basis of the amendment or addition of parties. Nevertheless, not only the legal nature of the amendment or addition of parties wasn’t completely explained, but also the researches of the amendment or addition of parties have not clarified the association between Subparagraph 2 and Subparagraph 5. Furthermore, there would be a controversy about how to judge the protection of the interest of instance level if the draft be passed. Above all, on the purpose of clarifying these controversy, this research is based on the amendment or addition of parties. In the author’s opinion, the legal nature of the amendment or addition of parties could be seemed as the amendment or addition of Pleadings. Firstly, applying the namely grammatical interpretation, Article 255 indicate that the amendment or addition of Pleadings, which also include the amendment or addition of parties; Secondly, according to teleological interpretation, the legal purpose of Article 255 is strengthening the function of the solving disputes, not be restricted to the amendment or addition of object of procedure; Last but not the least, in accordance to systematic interpretation, since Subparagraph 5 is served as instances in Article 255( illustrative provision), the other Subparagraph can also be the legal basis of the amendment or addition of parties . Thus, it is no doubt that the amendment or addition of parties can be based on Article 255. In regard to the Amendment of parties, express theory is applied to determine the parties in civil procedure according to the author’s opinion. It appears that some judicial opinions in Taiwan have confound the distinction of amendment and correct of parties. As the elements of the amendment of parties, the old plaintiff should have motion to dismiss, the new plaintiff should have motion to sue. According to Article 262 Paragraph 1, whether the agreement to dismiss of defendant is necessary depends on having proceeded orally on the merits; otherwise, it can be replaced with Subparagraph 2, 4, or 7. On the other hand, in order to establish the procedure legitimacy of the effect of amendment of parties, providing new parties enough information about the old action, and protection of right to be heard are essential. In relationship to the addition of parties, if the claims must be adjudicated jointly with regard to all co-parties (so-called necessary joinder of parties), the addition of parties should apply Subparagraph 5. Conversely, the joinder of parties located the gray zone, such as joint obligation or guaranty, due to the trial of issues can repeatedly use the materials from old action, is able to apply Subparagraph 2 to add parties. That is to say, as the independent concept from joinder of parties, “based on the same transaction or occurrence” can solve the addition of the joinder of parties located the gray zone. Besides, the addition of normal joinder of parties can also apply Subparagraph 2 or 7, without considering of Subparagraph 5. Lastly, after the comparison with the joint oral argument in Japan law, the effect of the addition of parties should also concern new parties’ right to be heard, or it is necessary to give new parties opportunities about disputing over the material in old action. Finally, when the amendment or addition of parties made during the second instance (especially for new defendant), the protection of the interest of instance level should be concern. Compared with the place of the claims must be adjudicated jointly with regard to all co-parties, which the demand of resolving dispute consistently is prior to the interest of instance, when the amendment or addition of new parties is under the place of the claims don’t have to be adjudicated jointly with regard to all co-parties, in the result of applying Subparagraph 2, 7, the procedural interests of new parties are different from amendment or addition made in first instance. Furthermore, the new parties might have no opportunity to appeal to third instance. In the author’s opinion, if the amendment or addition of parties is made without the agreement of new parties; in the respect of object, it becomes necessary that confirming there is new issue independent from first instance. In the respect of subject, judging whether new parties have had opportunity to attend the trial in first instance is also essential. Only when there is no new issue and new parties literally had chance to attend first instance can amend or add new parties without the agreement of the new parties.

並列關鍵字

amendment of parties ； addition of parties ； the same transaction or occurrence ； the claims must be adjudicated jointly with regard to all co-parties ； the protection of the interest of instance level