Study On The Action Of Partitioning Res Communes

The cases of partitioning res communes have always been a certain amount in our civil judicial practice,however,there are many whirling views in the theories and divergences in the judicial practice for the special dispute type in the action of partitioning res communes.This not only attributed to referee split res communes is the coincident application between the action doctrina and non-contentious doctrina,as well as the coincident application between the substantive doctrina and procedural doctrina,but also because of the complexity of judicial practice of referee split and the immaturity of the academic research on the action of formation and the theory of right of formation.This dual factors prompted this study find the problems in theory and practice in the action of partitioning res communes through the basic theory,the trial procedure,the judgment rules as well as effect of the judge of the action of partitioning res communes,which under the support of empirical research.This article is divided into four chapters besides the introduction.Chapter one: the basic theory of the action of partitioning res communes.The right of claim for partitioning res communes is the right to partitioning res communes,it is not entitled to the right of the co-owners to divide,its nature is right of formation.When the co-owners can not make a protocol split and request the court to determine partitioning methods,only this situation can be called the action of partitioning res communes.The action’s purpose is form the partitioning methods by the court instead of the co-owners’ partitioning agreement to eliminate the co-ownership,therefore,the theory of action of formation is more self-consistence.The action is rely on the discretion of the court,determine the appropriate partitioning methods according to the case,has the nature of non-contentious matter.Even if the partitioning methods determined by the court according to ex officio doctrine is not declared by the parties,it does not violate the principle of disposition,and also do not applicable of adversary doctrine.The action is the procedures of inherent necessary joint action,res litigiosae of the action should be determined in accordance with the whole parties,otherwise the capacity to be a party may be considered incomplete.With the diversification of types and characteristics of case disputes,it is difficult to expect that all of the co-owners have become litigants in many cases,therefore,if we insist on adhering to “the necessary for joint action”,many disputes will not be able to resolve in this case to be resolved by judgment on these cases,the judicial practice is trying to ease through interpretation.To absorb the stronghue of “the necessary for joint action” for the action,the most direct solution is to amend the common nature of the substantive law and toward to joint ownership by share.In the proceedings,the courts add the the co-owners who did not charge or missing in action as the plaintiff in accordance with the plaintiff’s apply,can also resolve this problem to a certain extent.In the action,the co-owners use the procedure to request the court to determine the partitioning methods,the dispute which the co-owners disagree is that factual relation of partitioning methods,this is also the essence that the action is non-contentious matter,so the res litigiosae of the action is the claim of determining partitioning methods.Chapter two: the trial procedure rules of the action of partitioning res communes.Theoretically,the action elements of referee split is partitioning methods cannot be determined by agreement,or co-owners refuse to perform after the agreement because of the extinctive prescription is completed,however,the practical point of view has been think that cannot be determined by agreement is defense elements.In the case of merge split in several real estates,it can be considered that the res litigiosae and the defense method are implicated,the res litigiosae is different,so the court should be hearing for the defendant’s counterclaim substantively.Theoretical opinion is generally believed that a part of the res communes maintain a common relationship must be attached to certain conditions,however,the court has been given the discretion that do not split for a particular part of the res communes in judicial practice.In the principle of transferring,the court should be hearing the interests of all co-owners and the status quo of the res communes fairly,and excessive restrictions should not be imposed on the merger split.When the co-owners reached a settlement in the proceedings,it should have the forming force and enforceability like referee split,the procedure of judgment and procedure of conciliation in the action have a strong correlation,and have the possibility and necessity for mutual conversion.It is generally accepted that the plaintiff can appeal against the partitioning methods,it mean that the parties may appeal if it is possible for them to obtain a substantially more favorable court decision,therefore,the view is not absolute that the court is not bound by the declaration of the plaintiff’s partitioning method.The principle of adverse alteration prohibition is not applied in the action.When the res communes is being as the subject matter of the execution in the action,the applicant shall be notified of the application as the third party.In order to avoid damage to the rights and interests of the mortgagor,the co-owners should inform all the mortgagor for the part of the res communes to participate in the proceedings.The court should also instruct the transferringpart in text of the judgment,which would be convenient for registration authority or enforcement organs having the basis of partitioning registration and auction distribution.Chapter three: the judge of partitioning methods in the the action of partitioning res communes.Requesting for determining the partitioning methods is the core of the court judgment in the action.Due to the diversified appearance of disputes of res communes,the practice of Taiwan region established and recognized partial split,merge split and other partitioning methods by the way of interpretation.German’s law excludes the court’s right of discretion in the partitioning method,the theories take partitioning method’s softening for the purpose,and the partitioning method has jumped out of the framework of German Civil law.Although Germany and Japan have provided only two partitioning methods of physical partition and auction partition,the judicial practice has broken the limitation of the partitioning method through the principle of good faith,the jurisprudence of the abuse of rights or the interpretation of the essence of the non-contentious matter.Theoretical opinion is generally believed that a part of the res communes maintain a common relationship must be attached to certain conditions,however,the court has been given the discretion that do not split for a particular part of the res communes in judicial practice.In the principle of transferring,the court should be hearing the interests of all co-owners and the status quo of the res communes fairly,and excessive restrictions should not be imposed on the merger split.Through the empirical research of the judge of res communes’ partitioning methods in China,we can find that the court should determine the partitioning method in a certain order,it not be allowed for the parties to choose at will.Physical partition must be consistent with two elements that the res communes can be split physically and does not detract it’s economic value,a pretium compensation is usually used in the partitioning for common real estate.There are many disputes in the way of pretium compensation in judicial practice,and the practice has begun to explore the diversification of pretium compensation methods,such as competitive split.The discretion of the court is not absolute,the judge’s discretion in allocation method is greater than partitioning method.Chapter four: the effect of the judgment of the action of partitioning res communes.The nature of pretium compensation in partitioning res communes is not ordinary creditor’s rights,otherwise it will lead to a new lawsuit because of the pretium delivery.When the part that should be owned establish any mortgage or pledge,the rights will not affected by partitioning res communes.However,if the right holder agrees to split or has been already participated inthe proceedings,or has been told by the co-owners to participate in the proceedings but he did not participate,his right should be deposited on the portion of the mortgagor or pledgor.After the referee split,the mortgages set originally should be kept on the land after the split,this can not only get rid of the possible resurrection of common after the right of mortgage is enforced,but also can take into account the procedural rights and substantive rights of the mortgagor.The action is a lawsuit of forming the partitioning method,so the partitioning method has the res judicata,request for registration and of the delivery of the res communes is not the res litigiosae,and they have not been debated,so have not the res judicata.The judgment of physical partition has both res judicata and enforceability,but if the partitioning judgment only shows the partitioning method and fail to judge the delivery of the res communes,it should apply the principle of expansion of enforceability.In the execution procedure of handing over item by item,the execution court should make a certain degree of examination of the right of the applicant to make a request for delivery,and the debtor can bring an objection action for the obligations of delivery.