Study On The Litigation Of The Return Of Common Property

When the rights of the common property are damaged by others, the owner of thecommon property pleads for the return of the property, this suit can be called Condictiocondominium pro indiviso. In the "Civil Procedure Law" in Taiwan, China, the proceedingsof the common property’s return was regulated as a separate lawsuit form, but in Chinamainland,there is not the concept, and in civil procedure judicial practice, it is judged by thecauses of return the original property or recover the occupancy. Author finds that thedomestic civil procedure legislation and judicial practice are operated by the same principlethat the civil parties are required to participate the lawsuit together, through the analysis ofthe co-ownership system and the provisions of the joint action system. Do not consider thetype of the joint action, coerce all the parties prosecute or response, that means infringing therights of tenants’ disposition,and violating the basic theory of the joint action.Author believes that, based on the principle that the co-ownership can not be separated,and the co-owners must be implicated, the proceedings of claiming the common property isdifferent from the general form of litigation. Because of the different form of co-ownership,the rights and obligations between co-owners’ relationship are also different, therefore, it isnecessary to have a research on the co-owners’ relationship of rights and obligation indifferent situation of different co-ownerships’ kinds and the validity of an act. Therefore,author hopes that the thesis can study the litigation of common property’s return, based on thetheory of the rights of co-ownership, joint action system, the eligibility of the parties, objectof action and indivisible debts.In addition to the introduction and conclusion, the body is divided into four parts.The first part is an overview of the litigation of common property. This part mainlyincludes three aspects: First, an overview on co-ownership, classification and related concepts;Second, an overview of requesting objects’ return; Third, an overview of a joint action,elaborates the concept of joint action, classification, the constituent elements of a joint actionand review.The second part discusses the qualification for the proper party in the litigation ofcommon property’s return and object of action. It discusses the following issues: First, theeligibility of the parties; Second, the object of action, that is the problem of judging at once. The third part is to analyze the effectiveness of the judgment in the litigation of commonproperty’s return and procedural safeguards. It discusses the following questions mainly: Thescope of the effectiveness of judgments and procedural safeguards mode in the situation oftenancy in common and joint tenancy.The fourth part proposes the recommendation of how to improve the litigation system ofcommon property’s return in mainland area. It discusses as following: How to regulate theeffectiveness of one party’s behaviour to all joint owners; improve the necessary joint actionsystem in China; Provide the substantive and procedural elements of the proceeding in whichthe court coerces the co-owner to participate the litigation.