Analysis On The Application Of The Subjective Preliminary Combination Of Litigation In China's Legal Practice

Civil Procedure Theory in the civil law countries usually divides the combination of litigation into subjective combination of litigation and objective combination of litigation. Correspondingly, the preliminary combination of litigation can be divided into subjective preliminary combination of litigation and objective preliminary combination of litigation. In general, the subjective preliminary combination means that, because of being unaware of the fact or failing to offer evidences, the plaintiff claims two incompatible requests in the same legal procedure. If the anterior action is supported, the posterior action needs not to be tried, while if the former is dismissed, the latter should be put to trial. The subjective preliminary combination of litigation is thoroughly discussed in those continental law countries and areas, such as Germany, Japan and Taiwan of our country. The Germans think: the subjective preliminary combination of litigation means that the plaintiff asks for judging the posterior action if the anterior action is unreasonable. When the plaintiff prosecutes, the anterior action and the posterior action relate to each other. If the anterior action wins and gets judged, the posterior action and their relationship will vanish and can't be judged any longer. The Germans also think that there needn't be mutually exclusive relationship between the anterior claim and the posterior claim. The major scholars of Japan and Taiwan have almost the same opinion as the Germans'. The difference is that they think there must be the mutually exclusive relationship between the anterior claim and the posterior claim, and the appealing court will take up the litigation without the limitation of its first trial, which means whether the plaintiff's claim has been wholly tried in the first trial or not, both the anterior claim and the posterior one will be judged in the appealing court.Though there are many differences among laws of these countries, and those scholars have different ideas about this institution, it is helpful for the protection of litigants' rights, the elevation of law efficiency, the settlement of disputes thoroughly and preventing conflicting judgments. In modern China, there are many cases pulled out in practice, because of lack of legal provisions and few studies about this institution. When the court settles the similar cases, there are many difficulties. In view of this, the author advocates that we can deal the same cases by the institution of subjective preliminary combination of litigation. This article draws out the institution of subjective preliminary combination of litigation through cases, points out that in the absence of relevant regulations the court treats similar disputes in different ways, and analyzes the basic composition of the subjective preliminary combination of litigation combining with relevant doctrines in Germany, Japan and Taiwan. This article concludes with some framework suggestions on the institution of subjective preliminary combination of litigation.There are four parts in this article. The first one shows that the lack of legal provisions causes many problems when we meet enumerating cases, and then introduces the superiority of subjective preliminary combination of litigation to solve these problems.The second part introduces subjective preliminary combination of litigation's constitution by showing its concept, characteristics and classifications.The third part elaborates the legitimacy of the subjective preliminary combination of litigation. It also analyzes relationships between the anterior action and the posterior action , and how to keep consistent of the trial grade.In view of practice, the forth part proposes some suggestions on action commencement, costs of action, and the trial and judgment in the first and the second instances.In the concluding remarks, the author states that because of weak theoretical foundation, joinder of preliminary action shall not be adopted in the legislation for the moment. However, practical experiments of such institution are feasible and can provide real cases for further theoretical study. Based on more practices and theoretical studies, this institution can finally be prescribed in statutes.