A Preliminary Inquiry Into The Theory Of Unsuitable Litigant Alteration

The theory of unsuitable litigant alteration, which is accompanied with the theory of unsuitable litigant, has not only an important theoretic value, but also an important practical significance. Although there is much controversy on concrete content of this theory in the academic and practical circles, more and more people approve its rationality and feasibility.If there are unsuitable litigant in civil action, the lawsuit will be unable to continue or it will be meaningless even though it continues. So, we must solve the problem. Any court, no matter whether it acknowledges the theory of unsuitable litigant alteration, facing this problem, has to take certain measures, and it has an unavoidable attitude if the court takes the measure of unsuitable litigant alteration, which can not only enhance the lawsuit's efficiency and solve the dispute actually, but also protect litigant's benefit better.The Civil procedure law (trial implementation), was promulgated in 1982, and stipulated how to change the litigant who didn't accord with the condition. However, it was cancelled in the"the People's Republic of China Civil Procedural law"promulgated in 1991. And now, it has no corresponding stipulation on unsuitable litigant, so there is much confusion in practice.Just under such background, it's necessary to make a preliminary inquiry into the theory of unsuitable litigant alteration. Based on the summary and analysis of correlation stipulations and measures of some countries and areas, such as Germany, Japan, the U.S.S.R., absorbing its reasonable constituent, according to practical situation of our country, this article has made a systematic analysis on the rationality, condition and legal effect of unsuitable litigant alteration. It confirms the meaning of unsuitable litigant alteration in a new way, and makes a major analysis on the condition, the core of which is related litigant's agreement, of unsuitable litigant alteration, and the validity, the form of which is verdict, of unsuitable litigant alteration. This paper is looking forward to constructing a reasonable, fair and more operative theory of unsuitable litigant alteration, based on the principle of balancing procedure justice and the entity justice, the procedure stability and the lawsuit efficiency, the litigant's main body status and judge's power.