民事訴訟法第478條第4項規定:「受發回或發交之法院,應以第三審法院所為廢棄理由之法律上判斷為其判決基礎。」所謂「廢棄理由之法律上判斷」所指為何?在學說與實務上存有諸多模糊與爭議,因而實務上甚常出現第二審法院與第三審法院對於特定法律問題之見解不同,導致該案件不斷來回於第二審及第三審間。本文透過實證研究之方式,分析並歸納我國第二審及第三審法院對於民事訴訟法第478條第4項適用之情形,期望能找出司法實務上對於廢棄發回裁判拘束力之共識,降低法院對於因「法律問題」與「事實問題」認定歧異所產生人民訴訟上之不利益。
Article 478, Paragraph 4 of Taiwan Code of Civil Procedure provides that “The court to which the case is remanded or transferred shall enter a judgment based on the legal conclusions made by the court of third instance as the reason for reversing the original judgment.”, and as to the concept of “a judgment based on the legal conclusions”, it is an arguable issue between the academy and practicing judges.Therefore, a case may go back and forth between the Appellate court and the Supreme Court, while there is a specific legal issue arising and the Supreme Court hold a different opinion than the Appellate court .On the basis of actual research ,the author tried to analyze and summarize cases concerning application of Article 478, Paragraph 4 of Taiwan Code of Civil Procedure among the Appellate court and the Supreme Court, and tried to establish the consensus of the binding effect of the judgment reversed and remanded to the original court, so that to reduce the diversity of opinions to “legal issues” and “fact issues” between the Appellate court and the Supreme Court and the disadvantages to the litigation of the people could be reduced.