A Study On The Litigation Form Of Unreal Joint And Several Liability

The litigation form of unreal joint and several liability is controversial in theory and judicial practice.The academic circles have different views on the litigation form of such cases.In judicial practice,adjudications of such cases is not unified.This thesis tries to determine the litigation form of unreal joint and several liability in line with the civil procedure theory and law,in order to provide help to solve the parties’ disputes,protect their legitimate rights and interests concerned and maintain the stability of procedure.In addition to the introduction and conclusion,this thesis is divided into four parts.The first part provides an overview of unreal joint and several liability,recognizes there are relevant provisions of it in Chinese civil legislation,points out that it is different from the other liability forms,lays the way for the subsequent research of its litigation form,and leads to the academic theories on its litigation form.The second part combs the academic views on the litigation form of such cases,summarizes and analyzes four views:single action theory,inherent necessary joint action theory,similar necessary joint action theory and common joint action theory.The first two theories violate the legislation and theory of substantive law,and ignores or avoids the identification criterion of joint action.The latter tw o theories are the focus of controversy.They state their claims respectively from the perspective of subject matter of action and the necessity of united judgment,but they take the reasons of the purpose of civil procedure,the parties’ right to dispose,finding out the facts and avoiding contradictory judgment as arguments.In fact,the litigation form of unreal joint and several liability should be determined from the identification criterion of joint action rather than the test standard of it.The third part sorts out the cases of unreal joint and several liability in judicial practice,extracts and summarizes the judges’ opinions on such cases and their reasons,and finds that the judges do not have unified judgments on whether they can sue together,the form of joint action,and whether to allow a post-action.It also points out that the reason lies in the judges’different understandings of unreal joint and several liability and the identification criterion of joint action.The fourth part analyzes the identification criterion of joint action,and determines that the litigation form of such cases is common joint action.Firstly,from the criterion of subject matter of action,common joint action theory can find its legitimacy from different subject matter of action theories.Secondly,from the criterion of the necessity of united judgment,the action of unreal joint and several liability does not have to make "one judgment".Finally,based on Chinese legislation and the criterion of subject matter of action,the litigation form of unreal joint and several liability is common joint action.It proposes that the scope of "the subject matter of action for each party is of the same kind" should be expanded.The plaintiff should be distinguished from the defendant when "all the parties agree" is considered.And it points out that whether to make one judgment should be decided by the judge.In the case of single action,in order to ensure the unity of judgment and the efficiency of litigation,the judge’s elucidation is needed and laws and regulations relating to the third party and common facts are applicable.