A Study Of Objective Preliminary Combination Of Litigation

Objective preliminary combination of litigation is a special form of combination in which the plaintiff balances his substantive and procedural interests,in accordance with his will,to sort and combine litigations.In Chinese mainland,compared with Germany,Japan and the Taiwan region,less research has been done on this subject,which is becoming increasingly sophisticated.So we should pay due attention to it.Academic circles in Japan and Taiwan region generally agree that it is legal only when there is a mutually exclusive and incompatible relationship in sequential litigations,but in practice it is also accepted that there is an objective preliminary combination when these sequential litigations of a single statement compete.According to the old theories of the object of action in China’s civil litigation academic and practical circles,the plaintiff has the right to claim of competing based on single facts of the dispute.However,the right of free choice has been misinterpreted and limited to the exercise of one choice in the prosecution,thereby unduly increasing the risk of the plaintiff making a wrong choice and undermining the protection of his rights.The objective preliminary combination of litigation allows the plaintiff’s claim to be heard on different legal grounds in the same case.This practice is currently of particular and significant value,so that the objective preliminary combination of competing sequential litigations should be recognized.The design of procedural rules has always been both the key point and the difficulty in constructing an objective preliminary combination of litigation.The most common objective preliminary combination is the combination by the plaintiff at the beginning of the case,i.e.the initial combination.It is also possible for the plaintiff to combine the litigations by way of late combination,by changing the litigations after the case has been accepted.If the respondent court has jurisdiction over any of the claims,it shall have jurisdiction over the whole case;if any of the claims has exclusive jurisdiction,the respondent court shall order the transfer of the whole case to the court having exclusive jurisdiction.In the first instance,because of the existence of a mutually exclusive or competitive relationship between the sequential litigations,the basic facts are single or intertwined,so that the court should combine the debate and rule on them sequentially.If the plaintiff wins the previous case and the defendant appeals,the subsequent case,if not decided,is transferred to the court of second instance accordingly.If the court of second instance dismisses the earlier case,the later case shall be heard and decided on appeal.If only the plaintiff,who loses the earlier case but wins the later one,appeals,the court of second instance may set aside the judgment on the later case and uphold the earlier one.If only the defendant appeals,the need for an appeal should be clarified,but the court with the right of interpretation should in the meantime urge the plaintiff to appeal.