Research On Preliminary Combination Of Litigation

The preliminary combination of litigation means that in the civil litigation,the plaintiff claims two or more related litigation requests in sequence,and only if the plaintiff's thematic claim is not supported by the court,the court starts to hear and referee the plaintiff's preliminary claim.The preliminary combination of litigation itself is an imported product,and mature research and trial cases have already existed in Germany,Japan,Taiwan and other countries and regions.Although this concept has already been studied in the theory circle of civil procedure law of our country,it has few practice in trial practice.The reason is that the provisions of the Civil Procedure Law in our country do not pay enough attention to the combinition of the lawsuit.The civil procedure law theory circle in China also discusses this kinds of merger method.Although different scholars do not have a unified understanding of the relevant theories of the preliminary combination of litigation,most scholars still recognize this special litigation combination method and actively explore the common understanding of it.In judicial practice,the parties and courts have also actively explored the way of the preliminary combination of litigation.The plaintiff lodged a lawsuit with the court,and requested the court to support the prior action.If the court did not support it,it requested to support the subsequent action.The ChongqingHigher People's Court has also issued relevant guidance opinions to approve the preliminary combination of litigation.However,due to the controversy over the merger theory of lawsuits,and the fact that judges use interpretation rights in a different way,court's case management systems and the exercise of the party's own powers of disposition,etc.The use of judicial practice is difficult.In this paper,while clarifying the theory of the preliminary combination of litigation,the application of it will be studied from the type of private lending cases,and the practical application value of it will be examined.In August 2015,the Supreme People's Court issued the "Provisions on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases"(hereinafter referred to as the "Private Lending Regulations"),and made special provisions on how to handle private lending cases.The introduction of the "Private Lending Regulations" has pointed out the direction for courts to try cases of private lending,and solved the difficult problems that have arisen in the current trial process.However,it is undeniable that the type of private lending will present new problems along with the continuous development of the social economy.This kinds of cases not only occupy most number of civil cases,but also easily cause confusion with the marriage and family disputes,equity disputes,partnership disputes,real estate disputes and other types of cases,making it possible for litigants to institute multiple litigation without violating the principle of repeated prosecution resulting in increased litigation costs,inconsistent referees,and shifted responsibility between the parties.Therefore,this article explores litigation in which litigants use the preliminary combination of litigation to file private loan types to resolve the above issues.Focusing on the above issues,this article is divided into three chapters to discuss:The first chapter is an overview of the preliminary combination of litigation.This chapter,on the basis of the source of the reconsideration of the preliminary combination of litigation,clearly defines the concept and classification of it,and distinguishes it from other related concepts,highlighting the features and unique values of it.The preliminary combination of litigation is a special form of merger.Apart from having the elements of the litigation and the basic characteristics of thelitigation,it has prior action and subsequent action who are relevant and mutually exclusive.Therefore,the prosecution of the merger also has the ability to achieve litigation economics,referee unification,facilitate attack defense,respect the party's disposition rights,and provide procedural guarantees for the realization of the entity's substantive rights.The second chapter is the procedural guarantee for the preliminary combination of litigation.As a special way of merging the lawsuit,the promotion of the litigation procedure is closely linked with the thesis and the preparation of the litigation.Therefore,on the basis of clarifying the legal issues,this chapter discusses whether the proceedings for the first instance and the second instance will be supported according to whether or not the prior action and is supported.The third chapter is about the application of the preliminary combination of litigation to the type of private lending.The types of cases in the trial practice have many problems such as multiple lawsuits by parties,inconsistency in judgments,and mutual evasion of the defendants.The reasons for these problems are the diversification of the theory of litigation standards in China,the different interpretation of the court's power,and the parties' right and so on.In the case of private lending cases,the application of the preliminary combination of litigation can give full play to the value of the prosecution of the preliminary combination of litigation and resolve the above-mentioned problems in this type of case.