The Theory Of Subjective Preparatory Merger Action

The preparatory merger of litigation can be divided into objective preparatory merger and subjective preparatory merger.The objective preparatory merger has been accepted by the theoretical and practical circles in China.On the one hand,the form of subjective preparatory merger is easily confused with common litigation and neglected by judges in practice;on the other hand,the legislation and practice of the main countries and regions of the civil law system have many changes to the attitude of subjective preparatory merger,which leads to the continuous existence of disputes on subjective preparatory merger.However,the social relationship is becoming more and more complex,the awareness of the rights of the parties is gradually improving,and the subjective preparatory merger has taken shape in China's judicial practice.In view of this,this paper holds that the subjective preparatory merger action should be introduced into China.In our country,the introduction of subjective preparatory merger action can start from the concept and system.In terms of concept,on the one hand,it makes clear the legitimacy of subjective preparatory merger;on the other hand,it responds to the inconclusive conclusion.In terms of system,it is a new type of joint action to define the position of subjective preparatory merger from the macro level,and to reform the procedure of subjective preparatory merger from the micro level so as to overcome the inherent shortcomings of subjective preparatory merger.It is the basis of the legitimacy of the subjective preparatory merger litigation to realize the one-time settlement of disputes,respect the right of the parties to dispose of disputes,prevent the contradictory judgment,and realize the litigation economy.The dominant goal of subjective preparation for merger is litigation economy,and the more fundamental value lies in the thorough settlement of disputes.At the same time,it is necessary to recognize the legitimacy of subjective preparatory merger,which is in line with the development trend of civil litigation in China.The negative theory does not deny the benefits of subjective preparatory merger,but only worries about the problems of subjective preparatory merger.Such concerns are not irreconcilable.The alternative plans such as notice of litigation and joint litigation applying for simultaneous trial do not completely replace the function of subjective preparatory merger litigation.There are several types of joint action in the moderate jump.We should fully understand the difference between the subjective preparatory action and the existing joint action.We should find the motivation of system construction from the legitimacy and necessity of the establishment of the subjective preparatory action,and fully consider the connection with the existing procedure.In terms of the future legislative development,the subjective preparatory merger litigation still has irreplaceable value in the sense of one-time settlement of disputes.On the basis of the appropriate transformation of the traditional procedure of the subjective preparatory merger,the problem of the unification of the appeal procedure is solved through the transfer of the whole case.According to the principle of the right of disposition and the autonomy of private rights,the positive benefits of the subjective preparatory merger procedure are brought into full play by advocating the lack of the benefits of the retrial and eliminating the retrial to ensure the stability of the defendant's status.Therefore,the author thinks that we can introduce the subjective preparatory merger action in our country from the two aspects of concept establishment and system construction.