The Building Of Joint Action For Not Really Joint Debt Cases

As one kind of debt，joint debt is burdened by more than one people, just thesame as joint debt, debt burdended according to one’s share and debt burdened by thesecond order, because of its characteristics which based on the same concrete fact, anumber of the debtors’ debt concurrence with each other, any debtor performing alldebts leading to the elimination of the debt. Although there is no proportion of sharebetween the debtors, when there is a final debtor, the overall debt shall belong to thefinal debtor who determines its difference from the above debts. The essentialdifference also determines the particularity of litigation form for this kind of debt. Asthe increasement of not really joint debt cases in judicial practice, in order to fullyprotect the civil rights of creditors, ensure timely and thorough settlement of disputes,we have liability to explore proper litigation form to handle such cases. In our country,single litigation form is widely used to handle these cases in judicial practice.However, it has defects in realizing the creditors’ civil rights, which easily leads toextreme circumstances such as the creditors’ receving double payments or nopayment. If the creditors’ receving double payments,that will breache the nature ofthe debt; If the creditors’ receving no payment, that will greatly damages the interestof the creditor. Once the creditor fails to receive payment, he or she has to sue two ormore times in order to realize his or her rights which undoubtly raises the creditors’cost,wastes the limited judicial resources and go against the targets pursed by civilprocedure law such as ‘all disputes solved by one time’ and ‘lawsuit efficiency’. Forthe perspective of protecting entity interest and procedure interest of the debtors andthe creditors, the solution to the problem is building joint action for not really jointdebt cases.There is practical feasibility and necessity for the establishment of the jointaction. First of all, it fits for the entity characteristic of the debt, reflects the internalrequirement of the articles of law and the correct positioning of the object of litigationin the case. Secondly, taking joint action to deal with such cases can effectively avoidthe creditors receiving double payments or no payments which is good for therealization of the creditors’ right. Lastly, in order to realize the values that procedure law pursues, we solve all disputes of the debtors and creditors in a proceding, we notonly gives all the parties full procedure guarantee to help them find out the facts ofthe case and improve lawsuit efficiency which is benefical for all disputes resolved byone time.In addition, we should locate the the nature of joint action for not really jointdebt which neither belongs to the common joint action nor to the necessary jointaction.I think it shall be regarded as an independent type of joint action. On thispremise, according to the uniqueness of this kind of joint action, we should carry onthe system design including the jurisdiction, the cause of action, claims, proceedings,expression rules, decision and execution of the judgment which is fit for the featuresof the not really joint debt and is different from the necessary joint action andordinary joint action.In a word, the best form which the courts handle not really joint debt cases is thejoint action. It not only makes up for the defect of single form, but also gives allparties adequate procedural safeguards, promotes all disputes solved by one time andrealizes litigation efficiency. For this reason, we should establish joint action for notreally joint cases as soon as possible in our country.