论我国诉的客观合并之制度化障碍及其克服

The Institutionalized Obstacles to the Joinder of Claims and Its Countermeasures

诉的客观合并必须满足诉的客观合并的法定要件,诉的客观合并在诉讼初和诉讼中具有不同的合并要件,我国民事诉讼法对此的规定并不完善;对于诉讼初的合并,其合并要件处于规范缺位的窘境,对于诉讼中的合并,其合并要件分为程序要件与追加要件两部分,最高人民法院对我国《民事诉讼法》的司法解释只规定了追加要件的部分内容,对合并要件的规定并不完整。合并要件欠缺构成诉的客观合并之制度化的最大障碍。对其制度化障碍的克服,应立足于立法论的立场展开。诉讼初的合并,要满足同一原告对同一被告提出数个诉讼标的、适用同一诉讼程序、法院对合并的数诉同时具有管辖权三个要件。诉讼中的合并,在程序要件上应满足诉讼初合并的前两个要件,在对数诉的管辖上,法院对合并的数诉之一具有管辖权即可;对于追加要件,诉讼中合并应满足被告同意或原告基于同一事实追加诉讼标的两个条件之一。

The legality of the joinder of claims means that such claims must satisfy the requirements for the joinder of claims. There are different requirements for the joinder of claims when it is conducted at the beginning of a litigation and during a litigation, but there is a lock of regulation on this in the civil procedure law of China. For the joinder at the beginning of a litigation, there is no regulations on the requirements. For the joinder during the litigation, the requirements are divided into two parts: the procedural requirements and the additional requirements, but Article 232 of the Interpretation of the Civil Procedure Law only stipulates part of the additional requirements, which is not a complete regulation on requirements for the joinder. The lack of joinder requirements constitutes the biggest obstacle to the institutionalization of the joinder of claims. The countermeasures should be based on the standpoint of legislation. The joinder at the beginning of a litigation shall satisfy three requirements that the same plaintiff bring several claims against the same defendant, the same litigation procedure is applied, and the court enjoys jurisdiction over the several claims to be joined. The joinder during the litigation shall satisfy the aforesaid first two requirements. As for the jurisdiction over claims, the court is required to enjoy jurisdiction over one of the claims to be joined;For additional requirements, the joinder during the litigation shall satisfy one of the two conditions that the defendant agrees or the plaintiff adds the subject matters based on the same fact.