The Perfection Of Our Country's Necessary Joint Action

Article 52 of The Civil Procedure Law of the People's Republic of China(Hereinafter referred to as "the Civil Procedure Law ")has relatively simple provisions on joint action.Our country divides them into the same type of action subject's common joint action and the same subject of action' necessary joint action.The necessary joint action is mainly studied in this article.Necessary joint action refers to a action in which one or both parties have two or more persons with the same object of action,and the court must jointly hear and make the same judgment.It is characterized by the plurality of the subject of action and the same object of action.The necessary joint action system has the functions of protecting the lawsuit right of parties,improving the efficiency of action,and ensuring unified judgment.Different from the necessary joint action in civil law countries,our country has not divided them into types,that is,they have not been divided into inherent necessary joint action and similar necessary joint action.As a result,all parties who should have enjoyed the right to sue separately,must participate in the action together.Doing this not only damages the parties' right to sue,but also conflicts with substantive law.As the complexity of disputes continues to increase,this single form of necessary joint action system not only fails to meet the demand of modern judicial practice,but also contradicts substantive law in certain aspects,that cannot guarantee substantive law run smoothly.In terms of specific application,it is mainly based on several enumerated provisions from Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China(Hereinafter referred to as " the Judicial Interpretation of the Civil Procedure Law ")which does not completely cover all types of necessary joint action cases,resulting in the range of necessary joint actions' application is narrow.At the same time,there are also problems such as the internal implication of the necessary joint action is overemphasized,the independence of the necessary joint action parties is insufficient,and the court that has filed additional the necessary joint action parties lacks specific procedural norms in the necessary joint action.This article puts forward specific and perfect suggestions that are in line with China's national conditions in response to the above issues:First of all,it is necessary to establish the classification standards of necessary common action,classifying them into inherent necessary joint action and similar necessary joint action;secondly,expand the scope of application of necessary joint action;Thirdly,to weaken the internal implication of the necessary joint action parties,including the establishment of the scope of application of "the advantageous principle" and clearing internal effect of withdrawal;Fourthly to determine the mutual independence between the necessary joint action parties,specifically including the necessary joint action parties can exercise their litigation rights independently and check the qualification of the necessary joint action parties separately;Finally,the specific procedures of the court to add the the necessary joint action parties must be clarified,it includes clearly posting the relief from adding the necessary joint action parties,and unifying the time of adding the necessary joint action parties,and unifying the way to notice of participation in litigation.