Objective Preliminary Combination Of Litigation Under Morden Ideas Of Civil Procedure Law

The combination of litigation can be divided into Subjective Combination of Litigation and Objective Combination of Litigation.Correspondingly, Preliminary Combination of Litigation can be divided into Subjective Preliminary Combination of Litigation and Objective Preliminary Combination of Litigation. Objective Preliminary Combination of Litigation means that a plaintiff,in case of the rejection of his first claim,institutes another action against the same defendant in a same legal procedure.There should be a exclusive relationship between the first action and the second action .The plaintiff requests a judgement of the first action.If the first action is supported, the second action needs not to be tried.If it is dismissed, the count should try the second action.The first action is called the anterior action,and the second action is called the posterior action.Objective Preliminary Combination of Litigation is thoroughly discussed in Continental Law countries and areas,such as Germany,Japan and Taiwan of our country.And the theory achievements promote the development of justice practice.Though there are many differences between the law of these countries,and the scholars have different ideas about this institution, this institution is helpful for the protection of litigants'rights,the elevation of lawsuit efficiency ,the settlement of disputes thoroughly and to prevent conflicting judgements.These characters tally with morden ideas of Civil Procedure Law.It can help to achieve the goal of morden civil procedure law.This institution is meanful in practice.The scholars don't study just for enjoyment.Though there are disputes,we should introduce this institution into our country.There are five parts in this essay.The first part shows the legal provision of our country about this problem by enumerating cases.The provision has many shotcomings.And then introduces the superiority of Objective Preliminary Combination of Litigation to solve these problems.The second part introduces Objective Preliminary Combination of Litigation's constitution and principle by showing it's concept,character,qualifications,classifications and applications.We can not avoid discussing the object of litigation if we want to talk about Objective Preliminary Combination of Litigation.The third part list the doctrines about the object of litigation.Non of them is perfect. In view of the legal provision of our country and the conception of the judges ang lawyers,the doctrine of substantive law is advisable. The forth part explains the action dependence of the anterior action and the posterior action,and the trial of first instance and second instance of these two actions.The most important problem is to keep consistent of the trial grade.The fifth part discusses the problem of carrying out Objective Preliminary Combination of Litigation in our country.The essay tries to innovate on these aspects:Firstly,nail down the relationship between the anterior action and the posterior action.The exclusive relationship includes two conditions:"can not exist at the same time"and"can not realize at the same time".Secondly,point out the provision of our country—telling the plaintiff to change his claim through judicial elucidation—has a lot of shortcomings.The solution is to replace it with Objective Preliminary Combination of Litigation.Thirdly, analyse how to distinguish different actions by the object of litigation. And this is to show how to constitute the combination of litigation and Objective Preliminary Combination of Litigation.Lastly is the problem of action dependence and some other difficult problems in the trial of first instance and second instance.