The Litigation Form Research Of Not Really From Tort

Not really joint and several liability,as one of the tort liability of the majority in our country,plays an important role in the field of tort law.In the case of non-real joint and several tort disputes,the infringer should be given the right of independent choice in the mode of prosecution.The infringer may choose to prosecute one of the infringers in a single case,or he may choose to prosecute all infringers together.When the infringer only sues one of the infringers,his litigation form belongs to a single lawsuit.In prosecuting all infringers together by the infringer,because the subject matter of the case is not the same,and there is no case of res judicata expansion,so its litigation form is not an inherent necessity of common litigation,nor is it similar to the necessary joint litigation.From the perspective of the systematic theory of civil litigation,the theoretical system of civil action has four logical dimensions,guided by the theory of the right of action in the first dimension and the theory of litigation purposes,as well as the principle of disposition and the principle of debate in the second dimension,based on the theory of the subject matter of litigation in the third dimension and the theory of res judicata It is of great significance to examine the theory of joint litigation in the Quaternary dimension.In the case of non-real joint and several infringement disputes,only by expanding the scope of "the same kind of litigation subject matter" in the third dimension,insisting on the form of litigation in the fourth dimension as ordinary joint litigation,and limiting the necessary joint litigation to the same and res judicata expansion in the third dimension of the litigation subject,In order to realize the purpose of litigation and protect the right of action of the Parties in the first dimension,and implement the principle of disposition and the principle of debate in the second dimension,at the same time,it can also conform to the trend of civil law system to expand ordinary common litigation.In addition to the summary and residual theory,the text is divided into four parts,a total of more than 33,000 words,the content is as follows:The first part: this part from the judicial practice of the case,through the judicial situation of the analysis and summary,pointed out that the non-real joint and several tort disputes in the form of litigation there is a single lawsuit or common litigation uncertainty,the form of litigation is unclear,whether to allow the post-appeal views are different and so on.The second part: This part points out that there is a single lawsuit or the common litigation is uncertain,the litigation form is unclear,whether to allow the post-appeal views are different and so on: first,substantive law and procedure exist discord,this kind of discord is not only reflected in the substantive law and procedural law of the functional value and logical starting point,It is also reflected in the differences between substantive and procedural laws on the morphological provisions of non-genuine joint and several liability proceedings;second,the user of the program is different from the purpose of the program driver.Third,there are differences between the legislative standards of litigation form and judicial standards.The third part: This Part first discusses the logical dimension system of civil litigation theory,and then expounds the "individual" prosecution model,"monolithic" prosecution model,"selective" prosecution model and the theoretical viewpoint of the academic theorists on the model of the prosecution of the non-real joint and several tort disputes.and the various viewpoints according to the Civil Procedure theory of the four dimensions as the standard analysis.It is pointed out that the "individual type" litigation model will make the scope of the Infringer's liability property smaller,is not conducive to the protection of the entity rights and interests of the infringer,is inconsistent with the substantive law provisions of the non-real collateral infringement,and is contrary to the spirit of substantive law,and the "monolithic" litigation model is inconsistent with the provisions of substantive law The "selective" litigation model not only takes care of the legislative purpose of tort law,but also conforms to the logical relationship between the basic theory of civil action,which is the choice on the current prosecution model.The forth part: This Part focuses on the "selective" litigation model,by the infringer to prosecute the infringer of one person,its litigation form is a single lawsuit.When the infringer sues all infringers together,under the guidance of the theoretical system of civil action,we should expand the scope of the "same kind of litigation subject" in the third dimension,limit the necessary joint action to the same and res judicata in the third dimension,and insist that its litigation form is ordinary joint litigation.In this way,we can realize the purpose of litigation and protect the right of action of the Parties in the first dimension,and implement the principle of disposition and debate in the second dimension.