摘要
关于婚姻无效之诉的程序问题,因我国法无明文规定,实践中困惑多多。婚姻无效之诉从其本质上看,解释为形成之诉更为妥当;对婚姻无效之诉的具体程序和规则,宜借鉴国外立法制定专门的人事或家事诉讼程序;婚姻无效之诉的诉讼标的,则可援用新诉讼标的理论中“诉的声明说”予以解释;关于婚姻无效之诉的当事人资格问题,鉴于婚姻无效事由多是损害公益的事项,故而可对申请人范围予以适度扩张,除当事人外,相关利害关系人也可以提起。
There are many questions in practice of marriage nullity suit, as our legal system doesn't expressly provide judicial procedures of nullity suit. Marriage nullity, in essence, is a kind of action of formation. As far as the marriage nullity concerned, it's proper to refer to the foreign special judicial procedures specially regulated for personal affairs or family affairs. As to the object of action of nullity, it can be interpreted with “the theory of contentious declaration” involved in new theory of object of action. On the subject of proper parties, qualifications and essentials of complaint should be broadened because the nullity of marriage are often matters damaging the common good. Both parties and related interested persons can present the pleas.
出处
《江海学刊》
CSSCI
北大核心
2007年第1期220-225,共6页
Jianghai Academic Journal
