| As an important civil litigation system,the joint action system is widely used in practice.However,the necessary joint action in our country is extremely generalized under the "dichotomy model",and it shows a non-normative state in juridical practice,which often contradicts the theory of substantive law.Afterwards,the Supreme Court’s judicial interpretations introduced similar necessary joint action,but there were misunderstandings in the purpose and application of the introduction.Therefore,the problem of generalization of necessary joint action could not be solved.In this context,There is contradictory at the legislative level in which type of the joint action applies to joint debt,so that it cannot effectively guide practice,resulting in different type of the joint action applies to joint debt in juridical practice.To solve this problem,it is necessary to study the substantive law theory of joint debt,and to amend the current joint action system in our country,so that the joint debt litigation can realize the unification of substantive law and litigation law.Through study the theoretical research on the joint debt,we can find that the joint debt is intended to fully protect creditors,giving creditors the freedom to choose any debtor to assume debt,meanwhile through the design of the internal claims,to achieve a fair burden within the joint debtors.Regarding the joint action system,on the basis of a comparative analysis of the common litigation system established in Germany and Japan and the existing system in China,we chose to use the subject matter of the litigation as the criterion to revise the joint action system in the China.The amended joint action system still regards "the common object of action" as the standard for judging different joint action,but it is determined that the object of action is the right of claim in the action of performance.On this basis,the lawsuit of the joint debt that often occurs in juridical practice is the action of performance.According to the substantive law theory of the joint debt analysis,the claim right raised by the creditor in the joint debt dispute is not unique,so the lawsuit of the joint debt shall be excluded from the necessary joint action and shall be limited to ordinary joint action.In addition to the introduction and conclusion,this article is divided into three chapters.The first chapter introduces the legal and practical problems of the necessary joint action in China,and in this context,the type of the joint action for joint debt has not been uniformly regulated and applied.The second chapter starts from the explanation of the substantive law theory of the joint debt,introduces its concept,internal and external legal relations and types,leads to the purpose of the joint debt system design,and provides a theoretical foundation for the study of the different types of action of the joint debt disputes.Then it explains the functional positioning of different types of the joint action,introduces the choice of the joint debt action in China and the civil law system,and inspires and reflects by introducing different doctrines.The third chapter explains the necessary joint action identification standards that China should determine,and on the basis of amending our joint action system,analyzes the types of the joint debt disputes and confirms whether there is the common object of action in the joint debt disputes or not,so as to treat the joint debt disputes as a common joint action. |
