Research On Similar Necessary Joint Action

In the continental law system, the necessary joint action is divided into two kinds: the inherent necessary joint action and the similar necessary joint action. Inherent necessary joint action requires all parties must jointly prosecute, or all parties are sued wholly. While similar necessary joint action anyone who is related to the case or several people who are related to the case prosecute or anyone or several people are sued. Taiwan has the provisions of similar necessary joint action. Similar necessary joint action has the characteristics such as the separability, synergetic identification and objective relationship etc. Compared with inherent necessary joint action and common necessary joint action, similar necessary joint action has a very big difference. Similar necessary joint action has the following features:respect for the parties and protection of the right of the parties; preventing the excessive interference of public power; efficiency of the proceedings; convenience for the litigation; refinement the need of necessary joint action system.China does not have the provisions of similar necessary joint action. However, with the development of economy and society, the disadvantages of necessary joint action system in our country continuously appeared. For example, the applicable scope is too broad. Therefore to establish the similar necessary joint action system in our country becomes very necessary. And in our country, to establish the similar necessary joint action system is the need for linking to the entity laws and the need for protecting the right of litigant option. What’s more, the establishment of the similar necessary joint action system also can reduce litigation costs and the threshold. Meanwhile, to establish the similar necessary joint action system in our country has a realistic foundation. First of all, to establish the similar necessary joint action system in our country, both in legislation and judicature, has had a preliminary attempt. For example, in the joint guarantee litigation, the law allows creditor choose the debtor or the guarantor as the defendant, the debtor and the guarantor may also be a defendant. Meanwhile, the establishment of similar necessary joint action in Germany, Japan and Taiwan of China provides the institutional and legislative reference.This paper puts forward its own proposals for the establishment of similar necessary joint action system in China. Proposals that set up similar necessary joint action system include the following three aspects:(1)litigant should be either parties or more persons take part in the sue; (2) the subject of litigation have implicated; (3) synergetic identification; such as the shareholder representative suit, Joint debt suit and infringement suit in which the same facts lead to multiple victims’ rights infringement. Finally this paper puts forward suggestions for the exercise of the procedural rights and substantive rights of similar necessary joint action, and puts forward suggestions for the implementation of the judgment of the similar necessary joint action.