Common Litigation System Study

In recent years, along with the deepening change of our society, various distributes emerge from the water and the number of civil cases continuously increase which makes unbearable workloads for courts. Sometimes the conclusion to a case is not that sound and the authority of justice faces challenge. The status quo results from various reasons. An important one of those reasons is that some cases, which should be or can be handled in joint action, were separated into single cases which results in repeated work of courts, expansion of litigants' legal cost and inconsistent judgments. There are related rules for joint action in our civil procedure law, but they are so brief and the idea and value behind them also conflict with each other. In guaranty law, product quality law and intellectual property law, new rules about joint action are made which supplement the original rules on one hand and on the other, bring more confusion to legal professionals on whether to utilize joint action or not. Thus makes different opinions and practice in different courts or even in different divisions of the same court. This dissertation analyzes joint action in broad sense, starts with practical issues, and tries to find out perfect countermeasures to all sorts of joint actions.The introduction of this dissertation puts forward the theoretical and practical significance of the study on joint action, reviews and traces the related reference materials both domestic and abroad, and reorganizes the issues to be solved.Chapter One discusses the fundamental theories of joint action. In this Chapter, the author defines joint action firstly, asserting that joint action, in a narrow sense, refers to a litigation in which each side or both sides have more than one person, while in a broad sense, it means a litigation in which all the litigants are more than two persons. Meanwhile, the Chapter also covers its characters and classification along with its definition. Secondly, the dissertation reviews the developing histories of joint action in both civil law system and common law system, and abstracts its systematical objective, i.e. improving judicial benefits, ensuring consistent judgments and achieving justice. Finally, this Chapter, using comparative methodology, introduces the composing elements of joint action in the aforesaid legal systems.From the second Chapter, this dissertation, based on the fundamental theory discussed in Chapter One, turns to typologic study of all sorts of joint actions. The first sort is necessary joint action. The Chapter develops the discussion following a thought to solve practical matters. Firstly, the Chapter takes it as the starting point that the confusion coming from the exclusive compulsory joinder of necessary joint action, puts the issue on the table that the unique type of necessary joint action is not enough for the legal practice, and believes that the necessary joint action should be disassembled using the theory of joint action in civil law system. Secondly, the author sets up the standard to differ inherent necessary joint action from analogy necessary joint action both from theoretic and practical angles. The practical angle is further explained in legislative and judicial practice. Therefore, the classification of joint action is clarified from legislation down to the interpretation. Thirdly, the addition of necessary joint plaintiff is also discussed. It is pointed that combining addition of plaintiff with waiver of substantive rights is not reasonable and that the compulsory addition of litigants is also different where the joint litigants are whereabouts unknown. The dissertation observes some flexible procedural devices from abroad and suggests that the compulsory addition should be replaced by putative addition and fictional addition. Fourthly, the construction of expansion of res judicata in our country is probed from the conflict between the judicial practice of expansion of res judicata and the traditional view of absolute effect of res judicata. Last, the consensus rule for necessary joint litigants' procedural acts is challenged and believed to be better substituted with rule of beneficial expansion in civil law system.Chapter Three sets forth the idea of quasi-necessary joint action to solve the practical issue existed in the subject-matter-related litigations such as joint liability litigations. The author unveils the dilemma between the compulsory addition of litigants and difficulty in judgments without claim and the dilemma between the need of addition of litigants and the absence of ensuring devices. Thereafter, the Chapter introduces and reviews numbers of countermeasures, both domestic and abroad, to these litigations, and advances the brand new theory of quasi-necessary joint action. This theory combines quasi-necessary joint action with the expansion of issue preclusion. In the last part of this Chapter, the author describes the construction of the expansion of issue preclusion and its coordination with analogy intervention effect.The fourth Chapter focuses on permissive joint action. Firstly, it doubts the judicial practice of separating permissive joint action into a serial of single actions, sets forth that the utilization rate of permissive joint action should be raised by the improvement in both social environment and procedural design. On the latter part, the procedural remedies offered to litigants must be designed to limit the separation power of courts. Secondly, the Chapter suggests that permissive joint action may cooperate with test case, and concludes the functions and procedural designs of test case through analysis on our judicial practice and foreign systems. Thirdly, the dissertation criticizes the status quo of judgment distortion of permissive joint action, observes the procedural and substantive elements of permissive joint action, and sums up that to eliminate its defects the system for judgments of portion claims should be set up and the procedural remedies of litigants against mal-judgments should be enhanced. Fourthly, the author advices to rebuild the direction of judicial policy for discretion and to reconstruct the discretion system as well since the discretion is prone to be abused and resulted in separation of permissive joint action.Chapter Five deals with the intervention system. Firstly, the author points out current third-party system cannot solve the problems of collusion actions against third-party's rights; therefore, the traditional third-party intervention system should be expanded to independent intervention system. This Chapter advances the detailed design of related procedure. Secondly, the author criticizes the unreasonable phenomena for quasi-litigant-status third-party to bear liability, points out that the necessity of implanting impleader system, and expatiates its procedural designs. Thirdly, the Chapter analyses the defects in current quasi-litigant-status third-party system. After carefully observing the intervention system in civil law system, the dissertation calls on to reform current system in the fields of intervention elements, intervenor's status, application for and objection to intervention, summon by courts, subject limitation of intervention effect. The Chapter also suggests constructing independent intervention system to meet the judicial need of representative action and formation action.