Research On Objective Preliminary Combination Of Litigation

Objective preliminary combination of litigation belongs to objective combination oflitigation, objective combination of litigation is at the point of the lack of long-term intheoretical research of civil action in China and confusion in practical applications of civilaction in China. For this reason, objective preliminary combination of litigation that is animportant branch of objective combination of litigation is choiced as the object of this articlestudy. This is the first systematic panoramic study to objective preliminary combination oflitigation, based on be typed on objective preliminary combination of litigation, centered asthe legal structure of objective preliminary combination of litigation that the substantive andprocedural law of the relationships between litigations, there is a comprehensive exposition ofthe concept, characteristics, historical changes, type, legal structure, trial and referee and othermajor theoretical and practical issues of objective preliminary combination of litigation, andthere is a discuss with simple combination, selective combination, overlapping combinationand other combination of litigation, in the last, there is advice of objective preliminarycombination of litigation in China builded on the practice of civil trial in China. In addition tothe preface, the article is divided into four chapters:The first chapter summarizes the concept, history, requirement and type of objectivepreliminary combination of litigation. Combination of litigation refers to that court mergertwo or more separate lawsuits in the same proceedings in order to trial and referee.Combination of litigation is essentially joinder of lawsuits, according to the different elementsof combination; combination of litigation can be divided into three types of objectivecombination of litigation, subjective combination of litigation and conglomerate combinationof litigation. Objective combination of litigation refers to lawsuits filed by the same plaintiffsagainst the same defendant is combined in the same proceedings. Generally, objectivecombination of litigation is joined of objects of action or claims rather than joined ofdeclarations of action or claims of action. Complaints about joinder of lawsuits graduallyappear with the development of the lawsuit system, it is back to the period of Roman law inthe earliest dating, and presents two different courses along with the Anglo-American legalsystem and the continental legal system. The choice of the theory of object of action directlydetermines the type of objective combination of litigation, for example, the scholars held the old theory of object of action believe that the right of claim or the right of formation ofcompeting constitute different objects of action, and selective combination of litigation shouldbe admitted, rather, the scholars held the new theory of object of action believe that the rightof claim or the right of formation of competing is not object of action because the substantivelaw recognizes only one payment, and selective combination of litigation should not beadmitted. This chapter is mainly based on the research way of scholars in Taiwan; there is apreliminary study about the other three combination of litigations excluding objectivepreliminary combination of litigation. Controversy of simple combination of litigation isrelatively small, it can usually be divided into two types of relational simple combination andnon-relational simple combination; there is a big difference about Germany scholars andJapanese scholars’ understanding about selective combination of litigation, it is referred to theold theory of selective combination of litigation (Germany scholars advocating) and the newtheory of selective combination of litigation (Japanese scholars advocating), the new theory ofselective combination of litigation is more in line with original intention of selectivecombination of litigation; overlapping combination of litigation is a concept advanced byTaiwan scholars when they is studying objective combination of litigation, personally, there isa high degree of coincidence between overlapping combination of litigation advocated byTaiwan scholars and selective combination of litigation, there is no value and meaning ofindependent existence, it can be replaced by selective combination of litigation.The second chapter discusses the concept, characteristics, historical changes, type andlegal structure and other basic theory of objective preliminary combination of litigation.Comparing the concepts advocated by Chinese and foreign scholars, the following two mainquestions can be fund: firstly, the relationship between prior litigation and subsequentlitigation is what kind of relationship in substantive law (i.e., substantive law relationship);secondly, the relationship between prior litigation and subsequent litigation is what kind ofrelationship in procedural law (i.e., procedural law relationship). Preliminary, conditional andsequential are three characteristics of objective preliminary combination of litigation. EarlyGermany doctrine regards that litigation conduct may not be conditional, and negatesobjective preliminary combination of litigation, thus joinder of lawsuits is very common inpractice, the Germany scholar held views changed that litigation conduct is completely notallowed to attach conditions, and instead accepted objective preliminary combination oflitigation. Affected by Germany doctrine and jurisprudence, Japan and Taiwan of China have recognized objective preliminary combination of litigation on the doctrine and jurisprudence,just whether there is incompatible relationship between prior litigation and subsequentlitigation is still controversial. According to the Germany scholars’ study, objectivepreliminary combination of litigation can be divided into preliminary combination withsubstantive law contact, preliminary combination with featured contact, preliminarycombination without any contact; According to the Japanese scholars’ study, objectivepreliminary combination of litigation can be divided into incompatible preliminarycombination and compatible preliminary combination; personally, objective preliminarycombination should be divided into intrinsic and non-intrinsic preliminary combination oflitigation in accordance with the procedural law relationship between prior litigation andsubsequent litigation, and then intrinsic preliminary combination of litigation should bedivided into typical preliminary combination of litigation and non-typical preliminarycombination of litigation according to the substantive law relationship between prior litigationand subsequent litigation. The legal structure of objective preliminary combination oflitigation refers to the procedural and substantive law relationship between prior litigation andsubsequent litigation, Regarding the procedural law relationship, prior litigation is justified isthe releasing condition of subsequent litigation, prior litigation is unjustified is the judgingcondition of subsequent litigation in intrinsic preliminary combination of litigation; it isantithetical in non-intrinsic preliminary combination of litigation. Regarding the substantivelaw relationship, subsequent litigation is on the basis of prior litigation innon-intrinsic preliminary combination of litigation; prior litigation and subsequent litigationcan not coexist on law or fact in typical preliminary combination of litigation (the exclusivetheory); there is generally the same purpose between prior litigation and subsequent litigationin non-typical preliminary combination of litigation (the same purpose theory).The third chapter comments hearing and judgment of objective preliminary combinationof litigation. Hearing difficulties of objective preliminary combination of litigation in the firstinstance is whether the court should separately trial prior litigation and subsequent litigation,or assembly? There are three perspectives: the first is to trail prior litigation, the second is totrail and debate assembly prior litigation and subsequent litigation, the third is the relationshipbetween prior litigation and subsequent litigation should be considered. Personally, regardlessof what the relationship is between the two, the court should trial assembly. Hearingdifficulties of objective preliminary combination of litigation in the second instance is whether subsequent litigation is transferred to the court of second instance, the defendant filedan appeal, after the plaintiff wins a judgment made by the court of first instance, and whenprior litigation is regarded as unjustifiable by the court of second instance, whether the courtof second instance directly judge subsequent litigation? Similarly, there are three perspectives:the first is the theory that subsequent litigation could be transferred and judged (positivetheory), the second is the theory that subsequent litigation could not be transferred and judged(negative theory), the third is the theory that subsequent litigation could be transferred andjudged when the plaintiff may declare (compromising theory). Personally, positive theory andnegative theory are too absolute, compromising theory is more in line with the status quo, butaccording to the provisions of Civil Procedure Law of China, only it is still appropriateamendment, compromising theory can apply to civil litigation of China. Firstly, if parties (theplaintiff) has not made or not made by the court’s intention to continue subsequent litigationtrial, the court of second instance even think prior litigation no reason, nor to judge directlysubsequent litigation, the original verdict should be rescinded, the basic facts are unclear, backto the court of first instance for retrial. Secondly, if the parties (the plaintiff) actively made orthe court of appeal to clarify the position to continue to trial, the court of second instancethink prior litigation no reason, when preliminary combination is typical preliminarycombination of litigation, the court of second instance can directly make the referee tosubsequent litigation; when preliminary combination is non-typical preliminary combinationof litigation, the court of second instance can considered subsequent litigation as the plaintiff’sadditional request and mediate, if mediation fails, the judgment shall be rescinded and back tothe court of first instance for retrial.The fourth chapter put forward to personal thinking and ideas to build objectivepreliminary combination of litigation in civil procedure of China. On China’s civil action,objective preliminary combination of litigation has great practical significance as follows:Firstly, to reduce litigation costs, conform litigation economic principles; secondly, to preventconflicting referee, ensure the same referee; Thirdly, to solve the problem of competingclaims, make up inherent defects of the old theory of the objects of action; Fourthly, to respectthe choosing right of the parties, remedy defects of jurisdiction’s negative exercise; fifthly, tofacilitate the parties to attack and defend, improve the acceptability of the results of thereferee. Both in theory or in legislation or on trial practice, objective preliminary combinationof litigation is in the infancy stage in civil action of China, research on objective combination of litigation including preliminary combination is weak in theory, objective combination oflitigation is no clearly defined in legislation, objective preliminary combination of litigationhas not been to apply necessarily. Proposed to be perfect from the following three aspects:Firstly, in theory, to clarify the situation of application objective preliminary combination oflitigation. Personally, typical preliminary combination of litigation applies to the situation thatparties consider the facts or legal relationship is still in an uncertain state, may lead to morethan two mutually exclusive claims or incompatible rights of formation; andnon-typical preliminary combination of litigation applies to the situation that parties considerthe facts have been identified, but parties should not clarity claims or rights of formationbased on what legal relationship; non-intrinsic preliminary combination of litigation applies tothe situation that parties consider more than two claims in progressive relationship, but doesnot know whether basic claim is certain. Secondly, in legislation, objective combination oflitigation including preliminary combination should be clearly defined. Objective preliminarycombination of litigation should not be in China’s “Civil Procedure Law”, but objectivecombination of litigation should be clearly defined. Thirdly, in trial practice, the appeal ofobjective preliminary combination of litigation should be extend, parties should set out claimsin accordance with the object of lawsuit, and has chosen carefully prior litigation orsubsequent litigation; judges should raise awareness of objective preliminary combination oflitigation, exercise timely and correctly power to clarify, and inform parties to increasepreliminary claims; the court only receives the highest amount of litigation costs of thesubject matter of litigation between prior litigation and subsequent litigation; treatment formissing lawsuit should be different according to the situation of the sentenced litigation; resjudicata of determined judgment is related to not only the sentenced litigation, but also thesentencing litigation through reasons.