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诉权作为诉讼法学的一个基础概念,是大陆法国家建构民事诉讼法律的理论起点。在诉权理论的发展史上,先后有私法诉权说、公法诉权说、二元诉权论说、宪法诉权说等学说,但这些理论都无法令人满意地解决“为何可以提起诉讼”这一核心命题。诉权理论之所以陷入“哥德巴赫猜想”的困局,很大程度上源自于诸多学者都希望寻找一个放诸四海皆准的诉权理论。任何诉权学说都有其产生、发展和消失的现实的、特定的社会基础。研究诉权理论的意义不是为了在各种既有理论之间舍此取彼,而是基于中国的现实需要,寻求一个合理的方案。
As a basic conception of litigation law, litigation right is the theoretical starting point for the construction of civil litigation law in mainland France. In the history of the development of the theory of litigation, there are successively theories of litigation of private law, theory of litigation of public law, theory of dual litigation of rights and constitutional litigation. However, none of these theories can satisfactorily solve the core proposition of “why litigation can be sued” . The reason why the right to appeal theory plunges into the “Goldbach conjecture” predicament, largely derived from many scholars want to find a universally applicable right to appeal theory. Any right to appeal theory has its reality, development and disappearance of the real, specific social basis. The significance of the study of the right to appeal theory is not to choose between the various existing theories but to seek a reasonable solution based on the realistic needs of China.