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谷口安平先生在《程序的正义》的一文中指出:“只要回溯到英美法和大陆法历史的早期阶段,就可以发现只有程序而不存在实体观念的现象。早期英国法采取诉讼方式(forms of action)的程序,具有特定事实关系的案件通过特定诉讼方式处理。如果由于社会变化或其它情况发生了与原有诉讼方式不适合的问题,就创造并引入新的诉讼方式。以我们今天的眼光来看,诉讼方式的追加其实就是创制新的实体法或新权利。作为大陆法起源之一的罗马法中同样可以看到类似现象。罗马法首先发达的是‘诉权’(action),诉权不同程序也不同,诉权的逐渐增加意味着实体法被创新。用一句话来表达这些现象就是:程序是实体之母,或程序法是实体法之母。”
In his article “Procedural Justice,” Mr. Anguchi Taniguchi pointed out: “As long as dating back to the early stages of Anglo-American law and the history of civil law, the phenomenon of procedural rather than substantive notions can be found.” Early English law took the forms of “ action, the case of a particular factual relationship is dealt with through a specific litigation process, and if new issues of lawsuit are not suitable due to social changes or other circumstances, new litigation is created and introduced From the point of view, the addition of the litigation method is actually the creation of a new substantive law or a new right.As one of the origins of the continental law, the same can be seen in the Roman law similar phenomenon.From the Roman law is the first developed ’action’ (action), the right to appeal is different Procedures are also different, and the gradual increase in litigation rights means that the substantive law is being innovated. Expressing these phenomena in one sentence is that the program is the mother of the entity or the procedural law is the mother of the substantive law. ”