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裁判无效的史观云者,乃研究司法机关的意思表示的诉讼行为,而加以史的观察之谓,换言之,即裁判虽存在,而不生效力的史观也。考判决无效的问题,虽发源于罗马法典日耳曼法,而其思想则各有不同。盖以罗马法虽认判决之无效,而日耳曼法,则不认之。于中世意大利的诸市法,则一方基于日耳曼法之观念,而采罗马法之思想,认“判决无效的声明”(Nichtigkeitsbeschwerde)。于他方,则基于罗马法之思想,而认“判决无效的抗辩”(Exceptionullilatis)。惟此时之学说,则这又与此相反。一方,依罗马法之观念,而渐近
The magistrate who ruled that the referee is invalid is a litigation action that studies the meaning expressed by the judiciary and refers to the observation of history that, in other words, the historical judgment of the existence of a referee, which is not valid. Although the test of ineffectiveness is originated from the Germanic law of Roman Code, its thinking is different. Although the judgment of Roman Law is invalid, the German law does not recognize it. In the medieval cities of Italy, one side, on the basis of the notion of German law, adopted the idea of Roman law and recognized “Nichtigkeitsbeschwerde.” On the other side, on the basis of the Roman law, “Exceptionullilatis” is recognized. However, at this time the doctrine, then this is the opposite. One side, according to the notion of Roman law, came asymptotically