代位权诉讼既判力述论

既判力指确定的终局判决所裁判的诉讼标的对当事人和法院的强制性适用力,主要包括主观范围、客观范围。在代位权诉讼中,中国目前法律对既判力的主观范围和客观范围未进行规定,故应从以下方面进行完善,既判力的主观范围不应以债权人是否胜诉为前提,法院就代位权本身所作的判断应成为免证事实,法院就代位权诉讼标的所作的生效裁判应具有确定性。

On Res Judicata in Litigati on with Subrogation

Res judicata refers to a rule by which a final Judgment by a court of competent Jurisdiction is conclusive upon the parties in any subsequent Litigation involving the same Cause of Action,mainly including objective scope and subjective scope.In litigation with subrogation,current laws in China have not yet defined the objective scope and subjective scope for res judicata.Therefore,it should be improved through the following measures:the subjective scope for res judicata should not be pre-conditioned by creditor's wining of lawsuit;judgment by a court towards subrogation should be taken as proof-free fact;the effective judgment by a court towards litigation with subrogation should be of certainty.