Research On The Objective Combination Of Litigation

As one of the "touchstones" of the theory of the object of action,the objective combination of litigation is a very important institutional arrangement in the countries or regions of the civil law system.It is also one of the basic theoretical problems of civil litigation.However,in the context of China,the system is characterized by the lack of rules,the shortage of academic resources and the "low level" utilization in the aspects of normative construction,theoretical research and practical operation.The cold treatment of the objective combination of litigation in our country not only results in the restriction of the systematic study of the object of action in our country,but also weakens the utilization level of the procedure of the parties,and seriously hinders the deep transformation of the mode of civil litigation in our country to the mode of litigant litigation.In view of this,this paper takes the objective combination of litigation as the research object,attempts to explain the relevant issues of objective combination of litigation comprehensively and systematically through normative analysis,historical analysis,comparative analysis,empirical analysis and other methods.This paper centers on the local construction of objective combination of litigation in China,and provides practical and feasible suggestions for the institutionalization of objective combination of litigation in China by clarifying the basic concepts,functional positioning,combination elements setting,form division and theoretical and procedural rules of objective combination of litigation.In terms of structure layout,this paper is divided into six parts:The first part aims to clarify the contents of the objective combination of litigation and the distinction between the system of combination and other litigation.The objective combination of litigation refers to the complicated litigation form in which the same plaintiff claims two or more objects of action against the same defendant in the same litigation procedure and takes the object of action as the object of combination.The objective combination of litigation must be based on a relatively stable and clear concept of object of action,and the old theory of object of action,which is the general theory of China’s theory and practice,should be the only choice.However,the old theory of object of action is generally understood as legal relationship in China,and because of the concept of legal relationship itself"mobility",the object of action can be between broad and specific rights and obligations to switch,this does not meet the objective combination of litigation in the stability and clarity of the judgment of the object of action.Therefore,the recognition of the object of action in the objective combination of litigation should return to the old theory of object of action.In the litigation of payment,the right of claim is used as the object of action,while in the litigation of confirmation and the litigation of formation,the legal relationship and the right of formation are respectively used as the the object of action.The object of action also needs to be distinguished from the two adjacent concepts of claim of action and cause of action.The claim of action has the polysemous nature,but in the objective combination of litigation,it should be understood as a specific claim of the party to demand the other party to bear civil liability so that it can be clearly distinguished from the object of action.The significant difference between the cause of action and the object of action lies in their different functional positioning.The former’s main function is to help the court to manage cases,which determines the abstractness of the cause of action.Therefore,it cannot replace the object of action as the factor to judge this lawsuit and that lawsuit.In addition,the objective combination of litigation is different from other forms of litigation in the change of litigation subject and litigation object.Necessary joint litigation is a combination of the subjects of the action.Common joint litigation belongs to mixed combination,which means that the subject and object of litigation have changed.The litigation involving the third party with independent claim right and the litigation involving the defendant without independent claim right also belong to the mixed combination,while the litigation involving the "auxiliary"without independent claim right does not belong to the lawsuit combination.As for the counter-claim,due to the particularity of its requirements and the traditional understanding of the theory in China,this paper juxtapose it with the objective combination of litigation.The second chapter focuses on the functional orientation of the objective combination of litigation to clarify the necessity of constructing the objective combination system of litigation in China.In terms of traditional functions,as far as the parties concerned,allowing the plaintiff to raise several objects of action in the same litigation procedure is conducive to the one-time settlement of disputes,and compared with the way of separate litigation,the combined litigation is conducive to reducing the litigation burden of the parties.As far as the people’s court is concerned,the existence of common evidence and litigation data among several subjects of the consolidated trial also helps the court to save the trial burden.Moreover,if several objects of action with implicative relationship are brought separately by two lawsuits,the judgment of the two lawsuits may be inconsistent in the determination of facts or legal issues.The objective combination of litigation can be used to avoid this dilemma.It also plays an important role in promoting the transformation of China’s civil litigation mode to the model of litigant doctrine,easing the challenge of concurrence of claims,and enriching the party’s attack and defense methods.First,the principle of request restraint of the doctrine of disposition right requires the parties to have the right to decide on the hearing of the plural objects of action,which is exactly the system content of the objective combination of litigation.Second,the solution to the concurrence of claims,it is not reasonable to choose one litigation mode in our country at present.The objective combination of litigation can not only solve the problem of double payment,but also give the parties the autonomy to use the procedure,which is worthy of recognition.Thirdly,the objective combination of litigation can extend the methods of attack and defense to the level of object of action,significantly enrich the trial content,and improve the parties’ acceptability of the judgment result.The third chapter is to present the objective combination of litigation in our country’s operating reality,summed up the shortcomings of practice and experience wisdom,so as to lay a foundation for the next three chapters.In practice,when the same plaintiff brings more than one object of action against the same defendant,the judge often fails to accurately identify the objective combination of litigation,and often invokes the provisions of article 52 of the civil procedure law and article 221 of the interpretation of the civil procedure law for procedural treatment.But these two are not about the objective combination of litigation,The former is about the combination of the subject of the action,the latter is about the judge in the combination of the.debate in the litigation command.In some practical cases,the judges can correctly identify the objective combination of litigation and freely allow the combination without prohibition.And some experience has been accumulated in the cognition of subjective identity and jurisdiction of the objective combination of litigation.In the recognition of the form of the objective combination of litigation,simple combination of litigation with implication has the highest acceptance.In practice,in addition to a small number of cases of objective preliminary combination of litigation,other forms of objective combination of litigation have no room for application.In general,the objective combination of litigation presents a "low level"utilization state.The narrow application space of selective combination of litigation,overlapping combination of litigation and objective preliminary combination of litigation is largely attributed to the improper regulation of the litigants’ lawsuit in the concurrence of claims.In practice,the judge binds the choice of the cause of action with the choice of the basis of the right of claim,and requires the parties to make a choice at the beginning of the litigation,which has become a standardized procedure.Because this way compulsorily models the litigation type of the concurrence of the right of claim as a single action,it also precludes the application of the above combined form.The fourth chapter focuses on the summary of the combination elements of the objective combination of litigation.The objective combination of litigation has the legitimacy,which requires that each lawsuit that constitutes a combination must meet the requirements of the combination elements while meeting the requirements of the litigation elements.According to the combination occurs in the beginning of litigation or during the litigation,different combination elements need to be set.The elements of the current our country civil procedure law of combination regulation is not perfect,for combination at the beginning of the litigation,the combination elements in the absence of specifications.For combination during the litigation,the combination elements can be divided into two parts,procedural elements and additional elements.Article 232 of the interpretation of civil procedure law only stipulates part of the additional elements,so the provisions of the combination elements are not complete.The lack of combination elements directly restricts the institutional process of the objective combination of litigation.The combination at the beginning of litigation should satisfy three combination elements.First,the same plaintiff brings several objects of action against the same defendant.Second,the number of objects of action applies to the same procedure.Third,the court has jurisdiction over the objects of action.In the setting of jurisdictional elements,the court may have jurisdiction over one of the combined cases,but if there is no correlation between the cases,the court must have jurisdiction over the cases at the same time.As for the combination in the litigation,for the procedural elements,it must meet the above three combination elements at the beginning of the lawsuit,for the additional elements,it should meet the defendant agreed or the plaintiff based on the same fact to add object of action of the lawsuit.Chapter five attempts to examine the traditional classification of the forms of objective combination of litigation,and discusses the adaptability of these objective combination forms of litigation in our country based on the theoretical understanding and the status of litigation practice,and points out the forms of objective combination forms of litigation in our country.The countries or regions of the civil law system have developed a variety of combination forms,such as simple combination of litigation,selective combination of litigation,overlapping combination of litigation and objective preliminary combination of litigation.For simple combination of litigation,its procedural structure is embodied as the parties put forward multiple objects of action that can coexist without any other conditions.Simple combination of litigation can be divided into simple combination with implication and simple combination without implication.The latter is not accepted in theory and practice in China,but it should be recognized because it can bring litigation and trial benefits to the parties and the court.In theory,the selective combination of litigation can be divided into two types:the selective combination of litigation by the parties and the selective combination of litigation by the court.The former does not involve the combination of the object of action and it should not be included in the objective combination of litigation.The application scope of the latter is limited to the cases of concurrence of claims and forming right concurrence.The main challenge of the form is that the judge makes the choice on behalf of the parties,which makes the object of action unclear.In addition,according to the tradition of judicial practice in China,the court adopts the criterion of the most favorable to the victim when the right of claim is convoking,which does not meet the requirement of the neutral judgment of the judge.Therefore,the selective combination of litigation is not the best way to deal with the concurrence of claims.Overlapping combination of litigation is a form advocated by Taiwan region,whose application scope is limited to the concurrence of claims and forming right concurrence.Constructed according to the overlapping combination of litigation procedure,it requires the court to judge all the objects of action by the parties,but only to satisfy the same statement,so the trial lacks litigation efficiency.Moreover,the statement of overlapping combination of litigation can not give consideration to the relief effect of different actions,and it is not the best way to solve the problem of concurrence of claims.The objective preliminary combination of litigation divides into the true objective preliminary combination of litigation and not the true objective preliminary combination of litigation.In the former case,the plaintiffs prior claim may reasonably constitute the termination condition of the later claim,and the prior claim has no reason constitutes the effective condition of the later claim.The conditions for not the true objective preliminary combination of litigation are the opposite.The former scope of application is limited to the two cases where there is a mutual exclusive relationship between the objects of action and the concurrence of claims,while the latter is applicable to the case where there is a prerequisite relationship between the objects of action.The true objective preliminary combination of litigation is beneficial to enriching the parties’ attack and defense methods,and there are no disadvantages of selective combination of litigation and overlapping combination of litigation,so it is worthy of affirmation to respect the parties’ intention arrangement.In the traditional theory of our country,not the true objective preliminary combination of litigation is treated as simple combination of litigation.But because of the conditions attached to the trial of litigation objects,it should not be included in the simple combination of litigation,and it should be included in the scope of objective preliminary combination of litigation.The sixth chapter integrates the previous research results,and clarifies the special features of the objective combination of litigation,compared with the single litigation,in the stage of filling of a lawsuit,hearing and judgment on the construction of procedural rules.In the stage of procedure of first instance,the court shall examine the combination elements of the lawsuit filed by the parties.If the combination requirements are not met,the court shall treat each lawsuit as an independent lawsuit.At the trial stage,the court shall conduct the trial by means of uniform evidential investigation and joint argument,except in the case of a simple combination without any connection.For the judgment of the first instance,the method of part of the judgment can be applied to the simple combination of litigation,but it is limited to the simple combination with no implication.For the objective preliminary combination of litigation,the court should make different decisions according to the conditions of the judgment in the trial of the object of action.In the procedure of second instance,the parties must have the appeal interest.The judgment of appeal interest should be based on the principle of form disobedience and supplemented by entity disobedience.After the parties appeal,they will have the effect of blocking the judgment and moving the trial.Based on the principle of indivisible appeal,the appeal effect is not limited to the part which the appellant refuses to accept,but to all the matters judged by the first-instance judgment.Regarding the trial and judgment of the second instance,for the simple combination of litigation,the second instance court should distinguish the judgment mode of the first instance court to adopt all or part of the judgment,and then determine the hearing scope of the second instance procedure and make the corresponding judgment.For the objective preliminary combination of litigation,the court of second instance should decide the hearing scope and judgment mode of second instance according to the condition of the judgment of the object of action.In the case of the first instance,the court of second instance should decide the judgment scope and judgment mode under the specific circumstance that all claims lose,the prior claim loses,the latter claim wins,the prior claim wins.