On The Subjective Preliminary Merger Of Litigation

Based on the complicated legal relationship of entities and the uncertainty of the parties,such as our country has no right to act for them,one-person limited liability company and the tort of throwing objects from builiding,there are often cases in which the parties can not accurately determine who should be listed as the plaintiff or the defendant in order to obtain a favorable judgment.According to the experience of some countries and regions in the civil law system,some scholars think that the subjective preliminary merger action can solve the problems mentioned above.However,whether in theoretical research or in practical application,there have been long-standing disputes over such issues as the unstable status and interests of the defendant in preparation for litigation,the excessive protection of the interests of the plaintiff,and the difficulties in maintaining the unity of the appellate adjudication,thus has some doubt about whether the subjective preparation amalgamates the lawsuit the permission to apply or not.According to the relevant procedural jurisprudence and the applicable situation of the subjective preliminary merger of litigation in the lawsuit,the academic circle has gradually formed different theoretical viewpoints and put forward the best method to solve the above-mentioned disputes.Then,the relevant legislation through the civil procedure has been adopted in Japan,Korea and China's Taiwan region.In this paper,the admissibility of the subjective preliminary merger action is the core issue,as the basis for the construction and application of the subjective preliminary merger action,the research is carried out step by step along the basic train of thought of “the definition of connotation,admissibility support,constitutive elements,the trial and judgment,the construction of the system and the legislative suggestion”.Through the comprehensive and systematic study of the subjective preliminary merger action,the author tries to put forward his opinions on the major theoretical issues related to the subjective preliminary merger action,and combine the practical and legislative experience of the relevant countries and regions.And then,the author puts forward some tentative ideas and legislative suggestions on the construction of the subjective preliminary jointer action in our country's civil procedure.In addition to the preface and conclusion,this paper is divided into five chapters,about200,000 words.The details are as follows:The first chapter is about a brief survey of the subjective preliminary merger action.In the case of subjective jointer of actions,based on the facts of the same case,in order to prevent the plaintiff from losing the action without reason,the plaintiff brings another action against different subjects or different objects of action at the same time,if the master's claim is successful and the decision is made,the court does not have to decide on the preliminary claim.On the other hand,if the subject matter claim is not accepted by the court,the court must make a decision on the preliminary claim,which is called the subjective preliminary merger action.According to the characteristics of this form of litigation,such as preparation,exclusion,combination and conditionality,we can define the subjective preliminary merger of litigation as: In the same litigation procedure,the subject plaintiff and the preparation plaintiff are opposite to the same defendant,or when the same plaintiff simultaneously brings several motions that cannot coexist against the subject defendant and the reserve defendant,the plaintiff declares that it will give priority to the trial of the subject suit,and the plaintiff's master claim to obtain a victory to determine the judgment as a preliminary claim for the release of the conditions,and request the court for the preliminary claim for trial of the jointer action.The subjective preliminary merger action is generally divided into two kinds: the plaintiff's preliminary merger action and the defendant's preliminary merger action.Some scholars directly regard the subjective preliminary merger action as common action,necessary joint action and the participation of the third party in joint action.It is considered that these procedural rules should be directly applied to deal with the relevant issues in their application.And because the action of subjective preparation for merger is closely related to the action of objective preparation for merger,many scholars copy the relevant rules of the latter into the action of subjective preparation for merger,which is actually an independent form of litigation,there is a significant difference between the subjective preliminary merger action and these litigation forms.The second chapter is about the admissibility of the subjective preliminary merger action.The biggest dispute of the subjective preliminary merger action is its admissibility,especially in the defendant's preliminary merger action,when the plaintiff obtains the successful judgment on the subject matter claim,some scholars think that the preliminary claim is eliminated retroactively.Therefore,it will lead to the instability of the status of the defendant in preparation for litigation and bring about bad interests,which are the excessive protection of the plaintiff's interests,and it will be difficult to maintain the unified judgmentin the second trial.Based on the in-depth study of these important issues,scholars have gradually formed different viewpoints on the admissibility of the subjective preliminary merger action,such as affirmative,negative,compromise,modified affirmative and simple merger.On the basis of a comprehensive analysis of the advantages and disadvantages of these theories,this paper puts forward that in order to implement the doctrine of disposition,the parties should be given the right of choice in the relevant litigation procedure,and the rights and obligations of litigation among the parties should be fairly distributed,dispelling the doubts about the so-called excessive protection of the interests of the plaintiff;combining the preliminary claims with the subject-matter claims for debate,trial and adjudication.The application of the principle of efficiency and good faith can solve the problem of the defendant's unstable and unprofitable litigation,and the application of the fiction appeal theory can maintain the pre-merger relationship in the second trial,in order to effectively protect the unity of the referee.The third chapter is about the constitutive elements of the merger action of subjective preparation.The chapter first explores the legal relationship between the subject-matter claim and the preparatory claim in the subjective preliminary merger action.The claim of master and the claim of preparatory action are incompatible and mutually exclusive in substantive law,that is,they must not coexist in fact or in law.As to the procedural legal relationship between the two claims,it is generally said that the claim of subject-matter litigation is not justified as the conditions for the suspension of the judgment of the claim of preparatory litigation are incorrect,because,although the claim of preparatory litigation is already part of the litigation procedure,however,the decision on the preliminary claim has not yet been made and is dependent on the conduct and judgments of the subsequent court;this is clearly incompatible with the requirement that the cessation be conditional on the legal act being established but not yet in force.Therefore,since the preliminary claim judgment has not yet been established,there is no such thing as a condition attached to the stay.Moreover,in the subjective preparation of the merger of litigation,it should be prepared for the prosecution of claims attached to the dissolution of the conditions.That is to say,the determination of the plaintiff's claim for victory is the condition for the dismissal of the preliminary claim.The specific legal relations of the subjective preliminary merger action directly affect the requirements of its constitutive requirements.Generally speaking,its subject element shouldconform to the requirements of the corresponding characteristics of the parties to civil action,the object element should satisfy the non-contradictory alternative relationship between the claims,and it is difficult to specify a party when a party to a lawsuit files a lawsuit,the time requirement for filing the lawsuit should be raised before the end of the argument of the first trial.The fourth chapter is about the trial procedure of the subjective preliminary merger action.Japan,Korea,China's Taiwan region and other countries and regions have rich practice in the application of the subjective preliminary merger action,which can comprehensively reflect various problems in the application of this type of action.As far as jurisdiction is concerned,in the absence of a court of common jurisdiction,subject to the requirements of a level of jurisdiction and exclusive jurisdiction,in addition to the general rules of jurisdiction,as long as the plaintiff brings an action to the subject matter suit or one of the preparatory suit claims has jurisdiction in the court,the court may have jurisdiction over the subjective preparatory jointer action.In the event of a dispute over jurisdiction between the plaintiff and the defendant,the competent court may be designated by a higher court to exercise jurisdiction.As far as the subject matter of litigation is concerned,the most controversial issue is the subject matter of the preliminary claim when the subject matter claim of the plaintiff is decided in favor.At this time,because the successful judgment of the claim of Master's position has not been determined,the litigation of the preliminary claim has not been eliminated yet,but should be transferred to the second trial procedure together with the appeal of Master's position.It can be seen that in this case,its litigation is not extinguished at the end of the first trial proceedings.Except for the basic stipulation that the cost of the civil action shall be borne by the Losing Party,the litigation cost of the subjective preparation of the merger action shall be,the calculation and sharing of the costs of the preparatory claim shall be dealt with separately according to the different judgments of the master claim and the preparatory claim.The litigation status between the subject-matter litigation and the parties of the preparatory litigation is a kind of special joint litigant relationship.The two claims shall be argued and heard together,and when the plaintiff's master claim is decided in favor of the court,the preliminary claim shall be rejected.The waiver and acceptance of the claim by the parties shall be confirmed according to the different circumstances in which the claim was made.With regard to the first trial judgment of the subjective preliminary jointer,except that the plaintiff's claim for subjectmatter and the preliminary claim are both ruled to be unsuccessful,if one of the co-litigants files an appeal,the effect of the appeal shall be that,should be extended to other co-litigants in order to ensure the continuity of the pre-merger relationship in appellate proceedings and thus to safeguard the unity of decision,that is to say,by adopting the fiction appeal theory,we can maintain the unity of judgment in the second trial of appeal.The fifth chapter is about the system construction and legislative suggestion of our country's subjective preliminary merger action.In the practice of Civil Litigation in China,there have been a large number of cases which can be solved by the subjective preliminary merger action,so it is necessary to construct the subjective preliminary merger action system.First of all,this chapter probes into the necessity and feasibility of constructing our country's subjective preliminary merger action.Secondly,the advantages and disadvantages of current relevant legislative models are analyzed in detail.For example,the newly updated application for simultaneous trial of joint action in Japan can only partially realize the function of subjective preparation for merger and exclude the majority of the plaintiff and the fact that the two claims cannot coexist from the scope of application.In addition,the newly established joint action in Korea seems to be able to better realize the functional value of the subjective joint action,but it also fails to bring the two claims that cannot coexist into the applicable situation,which limits the scope of application of the form of litigation.However,in China's Taiwan,only the relevant system has been modified to a certain extent,and the litigation of subjective preparation for merger has not been clearly standardized through legislation,which is not conducive to eliminating the confusion in the application practice of this form of litigation.Finally,on the basis of the positive experience of legislation in these countries and regions,combined with the reality of civil litigation in China,the author puts forward the preliminary tentative ideas and legislative suggestions on the construction of subjective preliminary merger litigation in China.