法官合并审理自由裁量权之规制——以诉的客观合并适用为中心

Regulation of the Discretion of Judges in Joint Trials ——Focus on the Application of the Objective Combination of Litigation

案多人少背景下诉的客观合并可以成为程序扩容方式。目前法官对同一当事人间的数诉在是否合并审理上专断恣意,表现为诉的合法性评价混乱和合并形态的肯认无序。前者应通过合并要件设置树立诉的合法性评价标尺,后者应通过特定合并形态的肯认确定当事人请求能多大程度上拘束法院。在合并要件方面,须通过法规范明确同一原告对同一被告提出数诉、法院对数诉之一具有管辖权、数诉必须适用同一诉讼程序三项合并要件,防止法官在诉的合法性评价上专断;在合并形态肯认方面,应通过颁布指导性案例确立有牵连关系的单纯合并与预备合并,及时回应当事人提起数诉的审理裁判要求。

The objective combination of litigation in the context of more cases and fewer people can be a way of procedural expansion. At present, judges are arbitrary about whether to combine several lawsuits between the same parties, which is manifested in the confusion of the legality of the lawsuits and the disorderly recognition of the combined form. The former should establish the legality evaluation scale of litigation through the merger requirements, and the latter should determine the extent to which the party’s request can bind the court through the confirmation of the specific combined form. In terms of the combined requirements, three requirements must be clarified through legal norms, including that the same plaintiff filed multiple lawsuits against the same defendant, the court has jurisdiction over one of the multiple lawsuits, and multiple lawsuits must be subject to the same litigation procedure;in terms of the recognition of the combined form, guiding cases should be issued to establish implicated simple combination and preliminary combination, and promptly respond to the parties’ request for trial judgments in multiple lawsuits.