| In our country’s civil litigation,the joint litigation system and the third party system without independent claim rights are two systems for resolving disputes among the majority that realize the litigation economy and demonstrate the value of efficiency.However,in the application of the two systems,the courts often intend to include all the subjects of substantive legal relations into the litigation due to the excessive pursuit of litigation efficiency,which makes the two identities of the co-litigator and the third party without independent claim rights appear in judicial practice.confused.This article will start from the situation where the two subjects are prone to confusion,explain the meaning of the distinction,and then dig out the reasons behind the confusion,and propose a path for the distinction.The first part of this paper explains the legislative status quo of the common action system and the third party system without independent claim rights and the confusion of the two subjects.First,the classification and application standards of the two systems in legislation are described,to pave the way for the following.Secondly,through the case,it specifically describes the problem of confusion between the two subjects in practice,and puts forward the problems of the parties’ lack of litigation rights,improper procedures and the court’s violation of the principle of punishment under the current confusion,emphasizing the significance of distinguishing the two subjects.value.The second part proposes that how to locate the subject in the similar necessary form of joint action is the key to distinguish.Focusing on two similar necessary common litigants,plaintiff type and defendant type,combined with internal shareholder litigation and subrogation litigation,this paper analyzes the problems existing in distinguishing the two parties.The third part delves into the reasons for the indistinguishable phenomenon in practice.First of all,from the perspective of the basis for the participation of the two subjects,the legislative provisions themselves are ambiguous and controversial,which makes it difficult to accurately distinguish and apply in practice,especially there is a certain fuzzy area between the auxiliary third party and the joint litigant.Secondly,the court’s power is too powerful,and it ignores the parties’ opinions on procedural choices and the additional conditions of the third party and unjustly forcibly introduces the third party.1.Thirdly,the substantive law stipulates that the parties have a certain right to choose the object of the exercise of the right of claim,and the common action system stipulated in the procedural law cannot fully guarantee the parties to fully exercise their rights in accordance with the substantive law.In the connection between the procedural law and the substantive law There is a "gap" between the two parties,so that the subject who should be a co-litigant may be introduced into the litigation as a third party without independent claim rights;finally,different litigation modes will affect the expression of the parties’ willingness to choose the procedure,and then Affect the roles of the two subjects in the litigation.The fourth part proposes a pertinent path for the reasons analyzed in the third part,provides suggestions for distinguishing the two litigation subjects,and points out how the court can effectively distinguish in specific cases under the current situation.First of all,while complying with jurisprudence and procedural law,an unavoidable space for transformation between the auxiliary third party and the co-litigant should be established,that is,the two litigation roles of the auxiliary third party and the co-litigant can be carried out under specific circumstances.Any choice,without prejudice to the parties’ right to appeal,does not violate legal principles;secondly,restrict the court’s improper addition of a defendant-type third party,clarify the conditions for the introduction of a third party without independent claim rights,and make the co-litigant separate from it Third,the relevant procedural laws should be improved,and the litigation procedures that can accommodate the realization of the rights stipulated in the substantive law should be constructed,such as the construction of subjective preparations for merger litigation,and the scope of application and supporting systems of similar necessary joint litigation should be clarified in legislation.Fundamentally complete the connection between procedural law and substantive law,and avoid the confusion of unclear subject qualifications;thirdly,judges should give full play to the judge’s right to interpret and protect the parties’ right to choose procedures;finally,it is proposed that under the existing system,When a judge hears a specific case,he lists the parties and the steps and methods for distinguishing between the two litigation subjects. |
