普通共同诉讼的权限分配与范围界定

The Authority Distribution and Scope Definition of Ordinary Joint Litigation

我国普通共同诉讼的实体要件过于单一,限于诉讼标的同一种类;程序要件较为僵硬,要求当事人与法院双重同意。这就使普通共同诉讼在司法实践中较难成立,适用范围比较狭窄,既难以发挥合并审理的诉讼效率功能,也无法承接必要共同诉讼的程序边界。普通共同诉讼的理论重构应当注重权限分配与范围界定。前者须合理协调当事人的程序异议权与法院的程序裁决权,限制合并管辖的适用情形,区分合并管辖与合并审理的不同定位。后者须明确普通共同诉讼与必要共同诉讼的进阶性顺位关系,必要共同诉讼应以合一确定的必要性而非诉讼标的共同为判断标准,普通共同诉讼须以诉讼标的同种且基础事实同种、基础事实同一或基础事实存在牵连关系三者作为合并审理的客观标准。

The substantive requirements of ordinaryjoint litigationin China are too singular, limited to the same type of subjectmatter, while the procedural requirements are too rigid, requiringconsent of both the parties and the courts. This makes ordinaryjoint litigation difficult to establish in judicial practice, and the scope of application is also quite narrow. So it is difficult to play efficiency function of amalgamated trial, and it is also unable to link up the procedural boundary of indispensable joint litigation. Our reconstruction of ordinary joint litigation should focus on the allocation of authority and the definition of application scope. The former shall reasonably coordinate the party’s right of procedural objectionand the court’s ruling power, limit the application of amalgamated jurisdiction, and distinguish the different positions of amalgamated jurisdiction and amalgamatedtrial. The latter must clarify the application order between ordinary joint litigation and indispensable joint litigation. Firstly, the indispensable joint litigation should be based on the necessity of unified determination rather than the subject matter of litigation. Secondly, the ordinary joint litigation must be based on the common subject matter of litigation, the common base reason, the same type of subject matter and base reason.