The Similiar Necessary Joint Action

In the judicial practice in our country,legal relationship suit among most parties is one of the important legal form.But in the legal relation of litigation among most parties,we often meet with problems that our existing legislation and theory fails to resolve.One of the very important reason is that,compared with the traditional continental law system,the joint action system of our country is short of similar necessary joint action.The lack of similar necessary joint action system resulted in that most legal relationship of the parties that shall not merge are forced to merge in reality,thus bringing damage to the disposition rights and interests of the parties.Meanwhile,the incomplete rules of judgment effect lead to contradiction in referee sometimes.At present academic researches on similar necessary joint action between the inherent and common joint action are inadequate on breadth and depth,and there are many divergences in theory,causing confuse in the practice.This study focuses on basic theory,core concept definition,scope and classification,the path,the hearing rules of the similar necessary joint action system,through combing dynamic theory and the latest practice of the similar necessary joint action system reform outside,from the view of substantive and procedural law,to deeply explore similar necessary joint action system,and to promote the establishment of the theory of similar joint action that conforms to present situation of our country with the nature of universal law.This paper,besides the introduction,is divided into five chapters.The first chapter is about the basic theory of similar necessary joint action system,distinguishing the connotation,historical evolution of similar necessary joint action from other types ofjoint action.In similar necessary common lawsuit,a single common litigant has an independent implementation right in the proceeding,but if in the joint action,it must be consolidated.From the historical development of similar necessary joint action,we can see that similar necessary joint action is a newtype of joint action which is about legal relationship among the parties.Degree of close relationship among the common litigants takes on a progressive relationship between the common joint action,similar necessary joint action and inherent necessary joint action.The key is "synergetic identification",as common joint action does not have the necessity of synergetic identification;but similar and inherent necessary joint action have.Compared with similar necessary joint action,inherent necessary joint action also has the necessity of joint action.The second chapter is about the synergetic identification of similar necessary joint action,to explore ways to understand the connotation of that.Litigious targets has the necessity of synergetic identification to each party,and is one of the important component of similar necessary joint action,and determine the scope of similar necessary joint action.The understanding of synergetic identification,developed from the initial theory of synergetic identification logically,to the theory substantively that the litigious legal relationship is inseparable,and to the theory on the procedure whose judgment standard is to pursuit procedural safeguards and prevent conflict of res judicata.Through analysis of legislation and theory about joint action and similar system in main countries and regions of the two legal systems,the substantive said of synergetic identification has actually replaced the so-called "mainstream said" on the procedure.Our country should also build a similar necessary joint action system based on the substantive said of synergetic identification,designing specific law system from substantive and procedural aspects.The third chapter is about applicable scope and classification in theory of similar necessary joint action,and to research classification in theory and practical application based on the definition of applicable scope of similar necessary joint action.On the scope,through exploring the litigation form between mutual relationship,analyzing the constitution of inherent necessary joint actionin mutual relationship lawsuit,we can clear the applicable limits between inherent and similar necessary joint action;through summarizing the matters of shared responsibility in entity,we can sum up the limit between common joint action and similar necessary joint action.Under the substantive said of synergetic identification,based on different types of inseparable entity,similar necessary joint action can be divided into equal similar necessary joint action,inclusive similar necessary joint action and involved similar necessary joint action.While similar necessary joint action is divided into several single action,and different kinds of similar necessary joint action corresponds to different relationship between litigation target in a single procedure.One is exactly the same litigious target in a single procedure,with the joint debt of similar necessary joint action is the most typical form;Second,in litigious target of a single action,one of the targets can be included in another,and similar necessary joint action formed from the debt of guarantee is the most typical;Third is the litigious targets in single action cannot contain each other,either directly equate but has the legal relationship of involvement,among that supplement and shared responsibility are the most typical.The fourth chapter is about generated path of similar necessary joint action,with the common action of the parties or sued as typical formation of similar necessary joint action,court could review prosecution behavior or the behavior of defendant.Review contents include general prosecution conditions,the common requirements and common special legal requirements of litigation,etc.For similar necessary joint action does not have the necessary joint action,in the majority of legal relationship,not all participants participate in the litigation cannot be appended.Therefore,in forming a single action or part of the party for the similar necessary joint action,to ensure the legitimacy of the effect of expansion of judgment in similar necessary joint action,the court should inform the participants who were absent from the action by power,bringing them into the proceedings.If the court did not inform the related parties,they can put forward the third person to withdraw the lawsuit,to repeal its adverse content,making the legal relationship back to not hearing state,and the relationship of the majority still can form the similar necessary joint action.On this basis,inform by power and the third person suit are possible ways to trigger a similar necessary joint action.The fifth chapter is trial rules of similar necessary joint action,and by analyzing the synergetic identification of the litigious target,we can point out that our country should research similar necessary joint action according to subjective merger.Based on the plural characteristics of similar necessary joint action,the court rules of synergetic identification in traditional continental law system has a direct and beneficial reference to our country.The purpose of the trial rules of synergetic identification is to make the referee of most the legal relationship unified,and to prevent that contradiction.Inseparable entity contained by most of the parties' legal relation,as the basis of explaining the trial methods of synergetic identification,canbe improved slightly based on the traditional synergetic identification,then we can establish the trial rules of similar necessary joint action.The contents include-the cancellation of the with-with rules,as well as the additional interested choice decision process when applying the rule of favorable prognosis in the single litigation of the single common litigant.