诉是民事诉讼法学中极其重要的一个课题,从罗马法上的诉发源,一直发展到现代,诉的外延日益清晰,内涵日益明确。然而,诉并不是从一开始就具有现代民事诉讼中诉的内涵,而是历史发展的产物。随着实体法与诉讼法的彻底分离,罗马法上的诉所包含的请求权与诉权逐渐分开,请求权这一概念进入民法理论,并成为一项重要的民事权利,诉权则逐渐演化为纯粹诉讼法上的概念,成为提起民事之诉的程序权利依据。至此,诉的体系彻底瓦解,民事之诉的框架初步成型。随着实体法与诉讼法在体系上的分离, “缘何可以提起诉讼” 作为一个重要问题凸现出来,由此,诉权学说围绕着实体法与诉讼法的关系展开,探索“缘何可以提起诉讼”的根源。在经历了私法诉权说到公法诉权说、抽象公法诉权说到具体公法诉权说的过程中,近现代意义上的诉的内涵明确起来。随着给付之诉、确认之诉和形成之诉三大诉的类型的确立,诉的类型体系得以完善,形成了现在的诉的体系。从目前对民事之诉的研究成果来看,主要分为基础理论研究和具体制度研究两个方面,基础理论研究集中在对诉权、诉讼标的、诉讼要件、诉的利益、既判力能基础问题的研究,具体制度研究则是对具体诉的类型尤其是新型诉讼的研究。然而,无论是基础理论研究还是具体制度研究,皆是建立在现代民事之诉的基础之上的,与深入了解每种与诉有关的学说和理论的发展轨迹,离不开对诉的发展历史的研究。将诉的发展历史作为一个主线,可以纵向了解各种诉的理论的发展历史,可以横向研究各种诉的特质和应有的构造。
Action is a very important topic in civil procedure law. From the origin of ACTIO in Roman law to the modern times, the extension and connotation of action are becoming clearer and clearer. However, the connotation of action is not like the connotation of modern civil litigation from the beginning, but the product of historical development. With the thorough separation of substantive law and procedural law, the right of claim in Roman law is gradually separated from the right of action. The concept of right of claim has entered into civil law theory and become an important civil right. The right of action has gradually evolved into a concept of pure procedural law, and has become the basis of procedural right to initiate civil action. At this point, the system of action has completely collapsed, and the framework of action has been initially formed. With the separation of substantive law and procedural law in the system, “why can we bring a lawsuit” as an important issue emerged, thus, the doctrine of right of action around the relationship between substantive law and procedural law to explore the root of “why can we bring a lawsuit”. From right of action in the private law to right of action in the public law, and from the abstract right of action in the public law to the specific right of action in the public law, the connotation of modern action is clear up. With the establishment of the three types of action, namely, fulfillment action, confirmation action and formation action, the type system of action has been perfected and the modern action system has formed. From the current research results about action, it is mainly divided into two aspects: basic theory research and specific system research. Basic theory research focuses on the right of action, the object of action, the elements of action, the interests of action, and res Judicata. The concrete system research is the concrete lawsuit type, especially the new action. However, both basic theory research and specific system research are based on modern civil action. A thorough understanding of the development of each doctrine and theory related to litigation is inseparable from the study of the development history of counterclaim. Taking the development history of litigation as a main line, we can understand the development history of various litigation theories vertically, and study the characteristics and structure of various litigation horizontally.