A Study On Similar Necessary Joint Action

The promulgation of Civil Code,has initiated law scholars′ research on joint and several liability,unreal joint and several liability,etc.Scholars attempt to analyze the types of relevant joint action,leading to the circles′ hot topic of discussion about similar necessary joint action.This kind of litigation can make up the loss of the ‘Dichotomy’ system of joint action in China.However,as time of its development is relatively short,scope of application,classification,criterion of identification,effects of legal actions and judicial judgment and so on,which are controversial in academic circles,are also restricting judicial application process of this kind of litigation.It is necessary to comb those mainstream theories of the problems above,and sort out suitable ones for China combining our judicial practice,and then concretize the abstract doctrines for facilitate judicial practice.There is common ground in civil law countries′ connotation definition of similar necessary joint action,which is used for reference to be the criterion of identification in China,is necessity of synergetic identification and no need for simultaneous litigation.This kind of litigation can prevent conflict adjudication and improve judicial efficiency,which is the common value of joint action;It also has its unique value:pursuing clients′ autonomous right of judicial proceedings more,on the premise of no conflict among judgments in spite of separate claims,to link the substantive law with the procedural law effectively.It has advantages of both inherent necessary joint action and general co-litigation.The constitutive requirement of synergetic identification determines that this kind of litigation needs to rely on effects of judicial judgment,like expansion of res judicata and issue preclusion validity,etc.What is the trend in scope of application of similar necessary joint action?There are two schools of thought,the liberals and the conservatives.Now in China,in terms of similar necessary joint action,the scope which is presented in judgment documents is less than the one which is expressed in legislation,because judges always query whether judgment document can directly quote this kind of litigation.Under the support of mainstream opinions and legal instruments,judgment document can directly present similar necessary joint action,even though there is no specific law.On this base,learning from the periodical development trend of civil law system,the scope of this kind of litigation in China will appear in a trend of expanding first and then limiting from objective point of view.In regard to typology of similar necessary joint action,there are pros and cons in academia,and the eclectic rule of ‘Limited’ typology shall be selected.It is necessary to keep typology,because the criterion of identification in theory of similar necessary joint action,which has no legal basis,is so abstract for judicial practice that there are many different sentencing phenomena in similar cases.However,typology is not equal to infinite,and types of disputes that can be applied should not be added at will,because mainstream opinions always change as the relevant theories become more mature,and new types of disputes are on the rise and controversy focuses of specific cases in similar disputes vary,if they are all fixed to the same type of litigation,scope of similar necessary joint action will be blindly expanded.The judicial operating path of ‘Limited’ typology is that:For cases that objects of litigation are the same,the rule shall be adhere to scope of civil law system mainstream opinions,otherwise they are exceptions;For cases that objects of litigation are implicated,the rule shall also be adhere to scope of civil law system mainstream opinions,but those outside the scope should be recognized by identifying criterion.As to the identifying criterion of similar necessary joint action,in comparison with ‘Same object litigation’ in China,the criterion ‘Necessity of synergetic identification’ of civil law system is more reasonable,because it includes cases that objects of litigation are implicated.The criterion ‘Necessity of synergetic identification in substantial law’ shall be selected among those three theories about criterion‘Necessity of synergetic identification’,because it can comply with substantial law and prevent conflict adjudication.The theory of new substantive law shall be selected to define the object which is synergistically identified,because the coverage of old substantive law says is too narrow and the one of procedural law says is too broad.In order to settle that the theory of identifying criteria is too abstract for judicial practice,the judicial operating path should be that:‘Entity relationship+Interest of litigation+Avoid conflict judgment’ and ‘No need to participate in action at the same time’.Legal action effect pattern of similar necessary joint action among co-litigants shall be rule ‘Be beneficial’,because under the criterion ‘Synergetic identification’,common evidence and claims among co-litigants is not equal to ‘Identical’,and it is not suitable to adopt ‘Rule of uniformity’ considering that expansion of res judicata will be adverse for party in later litigation;If litigations are separate in necessary joint action,expansion of res judicata shall take precedence among the types that be selected in effects of judicial judgment,while issue preclusion validity and reflexive effect as complement.The reason why expansion of res judicata shall take precedence is that it is essential feature and operating basis of this litigation system and also the aim of it.The reason why issue preclusion validity and reflexive effect complement is that expansion of res judicata,whose pattern of manifestation is main text of judgment document,can not settle those litigations whose objects are implicated under criterion ‘Synergetic identification’.It is necessary to apply issue preclusion validity and reflexive effect,however,considering that rule of pre-determined effect is unreasonable,they should be strictly applied to reduce the possibility of erroneous judgment.