论我国主观预备合并诉讼制度之塑造

Construction of the Subjective Preliminary Combination of Litigation in China

主观预备合并诉讼是指在民事共同诉讼程序中,与诉讼标的有关的当事人均作为原告或原告将与诉讼标的有关的当事人均作为被告,提起不能并存的诉讼请求,并列明各当事人及诉请的顺位关系,原告声明法院优先支持先位诉请,预备先位诉请无理由时,请求法院支持后位诉请。主观预备合并诉讼形态符合诉讼经济、纠纷一次性解决、最大限度地保障当事人实现实体权利等价值追求,具备本土化建构的理论基础与现实条件。在借鉴域外经验与考量我国法律制度的基础上,我国主观预备合并诉讼的主体合并类型应限于被告预备合并型,先后位之诉的合并类型应为仅存在获胜顺位关系型。其程序规则设计主要包括:先后位之诉在一审中应当一并审理和裁判;先后位之诉在上诉审中需诉讼程序统一进行;共同诉讼人中一人作出的实体性诉讼行为仅对自己生效,作出的程序性诉讼行为对全体生效。

Subjective preliminary combined of litigation,that is,in the procedure of joint action,the parties,concerned with the subject matter of the litigation,are all suing as the plaintiffs or the parties relating to the object of action are suing as defendants,the plaintiff cannot file coexisting litigation requests and list the sequence relationship between the parties and the petitions,the plaintiff declares that the court shall give priority to supporting their first petition.If the prior petition is unreasonable,it shall request the court to support the subsequent petition.The form of subjective preliminary combined litigation is in line with the value pursuit of litigation economy,resolve disputes one time,and maximum protection of the parties’real rights and interests,it possesses the theoretical basis and realistic conditions for localized construction.On the basis of drawing lessons from foreign experience and considering our own litigation system,the subject combination type of subjective preliminary combined litigation in our country should be limited to the type of plaintiff preliminary combination.The relationship between the prior litigation and the subsequent litigation is limited to the order in which the plaintiff hopes to win.The design of procedural rules roughly includes:prior litigation and subsequent litigation shall be heard and judged together in the first instance;the appeal trail procedure of prior litigation and subsequent litigation need to be unified;the substantive action in law made by one person in the joint litigants is only effective by oneself,and the procedural action in law is effective to all.