Preparative Claim

The preparative claim system is prepared as an important system of one-time settlement of disputes related to this action.When a party is in doubt as to which of two or more statements of fact is true,he may,regardless of consistency,state them in the alternative or hypothetically in the same counts or defenses,whether legal or equitable.Nearly everyone benefits in some form from preliminary joinder of actions.Courts and parties benefit from increased efficiency,the avoidance of duplicative litigation,and consistency in judgments.The preliminary joinder of actions has been recognized and developed rapidly in Germany,Japan and Taiwan of China.Although China has prepared preliminary joinder of claims in judicial practice,it is still blank in the legislation of the preparative claim system,which cannot be made in judicial practice.Chapter One demonstrates the significance of the paper and summarized the productions on research on claim and preliminary joinder of actions at home and abroad,which exhibits the present situation of research on claim and preliminary joinder of actions in academe.Chapter Two illustrates the definition,characteristics and classification of the preparative claim.The preliminary joinder of actions necessarily brings the preliminary joinder of causes of action and claims,but the preliminary joinder of claims is not necessarily the preliminary joinder of actions or causes of action.Consecutive,preliminary and conditional are charateristics of claims joinder.Preliminary joinder of claims has specific value,which is different from simple joinder of claims,selective joinder of claims,overlapping joinder of claims,progressive joinder of claims and pre-adjudicated issues.Chapter Three discusses the clarification of preparative claim.Preparative claim is not permitted when in the nature of things the pleader must know which of the inconsistent averments is true and which is false.An essential objective of preparative claim is to relieve the pleader of the necessity and therefore the risk of making a binding choice,which is no more than to say that he is relieved of making an admission.The rules encourage parties to plead not only what they know is factually true,but also any fact if they believe ’there is good ground to support it.’The causes of preparative claim are inconsistent with and contradictory of the causes of primary claim;however,such causes are based on the fact or the legal relationship.The preparative joint claim is provided that:the parties have a claim arising from the same factual and legal grounds,their claims are not substantively similar and the trial court is competent for all claims.Chapter Four focuses on the trial and judgment rules of the preliminary claim in judicatory practice.The preparative claim procees upon the theory that no inconvenience can result from the joinder of any two or more matters in the pleadings,but only from trying two or more matters together which share with the main action a common question of law or fact.Accordingly,the rule of preparative claim has permitted a party to plead multiple claims of all types against an opposing party,subject to limitations by the plaintiff’s power to direct an appropriate procedure for trying the claims in order.The court should trial in order separately,giving priority to primary claim.If the primary claim is unreasonable,the count should judge on the preparative claim,which resembles the situation that the parties plead on other action after losing the former action.The second trial of preliminary claim is more complicated.Based on the relevant case in practice,the paper analyzes legality and legal structure of preparative claim joinder in detail.This paper draws on the theoretical research on the prepare joinder in Germany,Japan and Taiwan of China,and analyzes the preparative claim in combination with the judicial practice in China.It also puts forward personal opinions on the determination,trial and judgment of preparative claim in judicial practice,and hopesto further promote the system of preliminary joinder of claims and applied in judicial practice.Sound policy weighs in favor of preparatvie claim,so that controversies may be settled and complete justice accomplished in a single action.