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Similar Necessary Joint Action System Research

Posted on:2013-05-31Degree:MasterType:Thesis
Country:ChinaCandidate:L HouFull Text:PDF
GTID:2246330395453069Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Similar necessary joint action allows the co-litigant to be prosecuted and sued separately rather than forcing them to be a joint action. And only when the common action occurs does judging at once become necessary. This article comparatively analyses the similar necessary joint action system in Germany, followed by Japan and Taiwan. Through a comparative study, the author founds problems existed both in legislation and in judicial practice. Currently China has not set up similar necessary joint action system and subdivided necessary joint action. In judicial practice, judges did abuse their power to append parties for cases that allow separate trial, which damages the parties’disposing right; Mandatory appending parties brings problems of difficult enforcement of judgments. The setting of similar necessary joint litigation system in China will be helpful to coordination with substantive laws, to achieve the goal of procedural protection of the parties while resolving disputes at the same time, to better protect the disposition rights of the parties, and to better facilitate the parties to institute proceedings so as to save justice cost.On the basis of inspecting on foreign laws, the author prepares to construct similar necessary joint action system explanatorily from four aspects of establishment standard, application scope, appending parties and status of parties. The author contends to broad the application scope of the similar necessary joint action with the standard of judging at once in a board sense,(judging at once both in procedural law and substantive law) including: formation actions or declaratory actions (exceptionally performance action) caused by the same facts or reasons; actions caused by subrogation; actions caused by judging at once in procedural law; joint liabilities claims caused by judging at once in substantive law and other litigations that does not belong to inherent necessary joint action. Judges should not append parties who do not join the action ex officio according to the nature of the similar necessary joint action. The status of the parties in such action is involvement and independence among them. The former refers to a person’s behavior in the joint action will take effect on the rest of the parties if his action is beneficial to the other parties. The latter refers to the judges should make separate investigations on such things as whether they possess of the establishment conditions of litigation, and whether the parties are qualified, the litigation abilities of the parties, the parties’abilities and so on; they can conduct independent litigation behaviors unrelated to the case.
Keywords/Search Tags:necessary joint action, similar necessary joint action, procedural protection, disposing right
PDF Full Text Request
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