Reflection And Procedural Conception On The Negation Theory Of Subjective Preliminary Consolidaion Litigation

Subjective preparatory amalgamation suit is an important theoretical topic in the academic circle of our country’s civil procedure law.It refers to the amalgamation of action in which the plaintiff,in order to protect his substantive rights,initiates the action of priority,and also initiates the action of priority which cannot coexist with the action of priority.However,scholars who hold a negative view of the litigation form claim that it has a bias towards the plaintiff ’s relief,which will lead to the instability of the litigation status of the latter defendant and the inconsistency of the judgment results in the appeal trial procedure,which makes a long-term debate on the establishment of the litigation form.Although most scholars in the mainland of China hold a positive attitude towards subjective preliminary merger litigation,the theoretical research of this litigation form in the mainland of China has not yet established a perfect theoretical system.From the perspective of judicial practice,we have not retrieved the litigation form in judicial practice of the operation of the case.Based on the existing theoretical research,this thesis examines the core views of the negative theory of subjective preliminary merger litigation,and finds that the scholars who hold the negative theory claim that the shortcomings of the litigation form can be eliminated through relevant systems.By comparing the evolution path of the litigation form in Chinese Taiwan,Japan and South Korea,combined with the different views and opinions of Chinese scholars,this paper puts forward that China should adhere to the parallel mode of legislative confirmation,judicial practice and theoretical research.As far as the specific procedure design is concerned,on the basis of in-depth analysis of the value contained in the subjective preliminary merger litigation and the necessity of its construction,the author advocates the necessary expansion of the scope of the substantive relationship between the first and second claims in the subjective preliminary merger litigation in China.In the nature of the subjective preliminary merger litigation,it is defined as a new type of litigation form.In the applicable type,it is advocated to adopt the parallel mode of the plaintiff ’s preparation and the defendant’s preparation.In the trial order,the first and second claims should be examined together,but at the processing level,the order between the claims should be adhered to.In the appeal trial procedure,the inconsistency of the results of the judgment is avoided by means of fiction appeal.Through the specific procedural conception of the litigation form,it is expected to be helpful to the construction of subjective preparatory merger litigation in China ’s future legislation.