Research On The Determination Of The Parties Of The Tort Liability By Share

The application of article 12 of the Tort Liability Law has great randomness in civil procedure.In the face of multiple tortfeasors,the infringee may choose to file an action against all or part of the tortfeasors for various rensons when seeking relief and safeguarding the legitimate rights and interests through judicial means.In practice,for the choice of the parties,some courts respect the will of the parties and conduct the litigation according to the choice of the parties;however,some courts do not allow the parties to choose some infringers to sue,and usually add other infringers to participate in the litigation according to their authority.These different practices,only from the legal level,may have both substantive law reasons,and procedural law on the relevant provisions of the rough contradiction has a great deal to do.In procedural law,there are not many specific provisions on the application of article 12 of the Tort Liability Law,which seems to be ignored by academia.Throughout the research on the application of procedure in tort law,most scholars focus on the application procedure of joint and several liability for tort,spend a lot of space to judge the current procedure,and are full of expectations for the improvement of the future procedure.However,the application procedure of article 12 of the TortLiability Law is often one-off,and few scholars have this it is generally believed that,in terms of the nature of the liability according to share,the common form of joint action should be applied and the choice of the infringed should be fully complied with.But is article 12 of the Tort Liability Law really suitable for common joint action in litigation procedure?In this regard,we can see the disconnection between theory and practice,because if article 12 of the Tort Liability Law should be applied to the form of common litigation in procedure,the probability that the infringed chooses to sue all or part of the infringers in practice will not be too different,but in judicial practice,the vast majority of the infringed are We will choose to sue all the infringers together;even if we do not sue all the infringers,some courts will add them on their own initiative,and the infringed chooses to sue some of the infringed for various reasonable factors,such as having some relationship with some of the infringers or reaching a settlement with the latter.Of course,because these is no clear provision in the procedural law,the treatment of each court is not the same.Secondly,article 12 of the Tort Liability Law allows the infringee to file several separate single lawsuits on several infringers,which not only wastes judicial resources and increases the litigation burden of the parties,but also may lead to contradictory judgments and frequent trial supervision procedures.The discussion on article 12 of the Tort Liability Law should not be based on the nature of share liability in substantive law,but also on various system concepts of civil procedure law.It should not only be based on the perspective of”whether procedural law is subject to substantive law or substantive law is subject to procedural law”.Instead,it should be considered in depth to explore article 12 of the Tort Liability Law internal causes of contradictions in substance and procedure.only by finding the root cause can we point out the right direction to solve the problem.In order to maintain the identity and stability of law,it is necessary to regulate the disorder in judicial practice and form a relatively stable and unified litigation structure.However,from the perspective of respectingthe parties' righr of disposition,finding out the truth,maintaining justice,solving disputes once and for all,and saving judicial resources,it seems unrealistic to form a fixed litigation form.In this regard,the conclusion of personal thinking is to respect the choice of the parties to the greatest extent,and on this basis,try to make all the infringers participate in the proceedings through various ways(for example,adding other infringers,who are not prosecuted by the plaintiff as the third party without independent claim),strive for one-time settlement of disputes,and achieve substantive justice and due process.