2005-08-012024-05-17https://scholars.lib.ntu.edu.tw/handle/123456789/694150摘要：原告於起訴時，基於同一原因事實，主張實體法上複數的競合請求權，而為單一聲明之情形，訴訟上究竟構成幾個訴訟標的？原告就該等請求權之審判順序有無選定權？若有，其所得排列之合併型態或審理順序為何？關於此等問題，不僅於新、舊訴訟標的理論間存有爭議，即使在舊訴訟標的理論中亦有爭執。持舊訴訟標的理論之論者，雖謂每一實體法上之請求權在訴訟上均構成一訴訟標的，而在上述原告合併主張競合請求權之情形，或謂其屬於競合合併，法院應就原告所主張之數項請求逐一審判，或謂其為重疊合併，法院僅得擇其中一項請求為原告勝訴判決。反之，持新訴訟標的理論之論者，則認為上述情形不構成訴之合併，僅原告有數個法律上攻擊方法而已，且法院之審理順序不受原告就其權利主張所排定順位之拘束。此等見解似未深究原告就訴訟標的之範圍是否有選擇權？其就如何定審理順位是否有應受保護之利益或地位？本文鑑於新修正民事訴訟法尊重當事人之程序處分權，賦予其平衡追求實體利益與程序利益之機會，擬藉以重新省思有關客觀合併型態，並檢討原告就競合請求權於訴訟上得否為預備合併、選擇合併或競合合併？法院是否應受其所排定審理順位之拘束？此項研究對於上述爭議問題之解決，應屬必<br> Abstract: At the time of indictment, the plaintiff advocates the plural form of concurrent claims in the substantive law based on the same cause and fact, even though it is actually a single statement. Under this circumstance, exactly how many litigated objects are being constituted in proceedings? Does the plaintiff have the choice regarding the sequence of trial in light of such concurrent claims? If yes, what is the arranged consolidated situation or the sequence of trial? With this in mind, controversy seems to exist between both new and old theories, and conflict is also evident in the old theory of litigated object. Those who are in favor of the old theory believe every claim under the substantive law constitutes one litigated object. However, in cases where the above plaintiff advocates the consolidation of concurrent claims or claims it to be concurrent consolidation, the court should perform a separate trial for each of the claims advocated by the plaintiff. When the plaintiff claims it to be overlapped consolidation, the court could only select one of the claims and grant the plaintiff a winning verdict. Conversely, those in favor of the new theory of litigated object believe the above circumstances do not constitute the consolidation of lawsuits, but they do offer the plaintiff several attack methods under the law. Also, the sequence of trial by the court is not restricted by the scheduled order of priority the plaintiff sets according to their rights. These types of opinions seem not to properly consider if the plaintiff has the option over the scope of the litigated object. Are there any interests or positions that should be protected concerning the establishment of the sequence of priority for trial? This paper accepts that new amended Code of Civil Procedure respects the procedural punishment right of all parties and empowers them to pursue the substantive interest and procedural interest in balance. This paper aims to rethink the objective consolidated situation, and review whether the plaintiff’s concurrent claims in proceedings can be regarded as prepared consolidation, optional consolidation or concurrent consolidation, or if the court should be restricted by the scheduled order of trial? This paper regards the resolution of these controversial issues essential and beneficial.