Research On The Litigation Of Common Property And Its Typology

According to Chinese Civil Procedure Law,common property(or res communes)lawsuit belongs to the typical necessary joint action.In other words,regardless of the concrete types,the common property lawsuit requests all common proprietors to prosecute and respond together,and the court must combine the trail and take syncretic sentence,or else,the prosecute will be dismissed because of the unqualified parties,or make it failure,etc.In judiciary practice,there are variety types of litigation of common property,such as the division of common property and the rights of common property,which are directly related to interests of all common proprietors,so the prosecute and respond about this require them be in present,but in other types of common property litigation,especially that about the rights of holding,such as the affirmation and the transformation of the holding rights,them are not required to be present,for there are not direct interests among them.Chinese Civil Procedure Law processes the common property lawsuit without discrimination,neglecting the difference of conflicts of legal relationships among common proprietor in different types of common property lawsuit,and over emphasizing the result of litigating process in synicretic sentence,so that directly affect the right prosecution and disposition of parties,which not only waste the judicial resource,but also do not handle the dispute immediately.So,the author think it is necessary to start the typology study of China’s common property lawsuit,based on the system of necessary joint action in process law and entity law protecting common relation law,at the same time,reference or take example by common property theory and the development and condition of example in Civil Law and in other countries and regions,so that to protect the entity law and process law of common proprietors.The author divides the paper into four parts.Part one is the introduction of the common property lawsuit.Firstly,introducing its concept simply,then investigating its present condition of legislation and practice,and simply analyzing the problems.Part two is the study of common property lawsuit and entity law basic theory of typology common property litigation,concretely including theory study of necessary joint action in process law and joint legal relationship in entity law,and also emphasizes the important meaning of the division in necessary joint litigation.Part three is the investigation and compare among common property theory and the development and condition of example in Civil Law and in other countries and regions,in order to be an enlightenment and reference of Chinese typology study in common property lawsuit.Part four is about the typology construction of Chinese common property lawsuit,changing the one size fits all method into trichotomy,concretely to divide the common property lawsuit into intrinsic necessary joint action,similar necessary joint action and not institute joint action.