论主观预备合并之诉及其制度构建

On the Lawsuit of Subjective Preparatory Merger and Its System Construction

主观预备合并诉讼作为诉的主观合并中的分类之一,因具有独特的制度优势,其重要性在法律关系日益复杂的现代化社会越来越凸显。对于主观预备合并制度,尽管国内外都存在较大的争论,但总体是肯定说占主导地位,且经过肯定说学者对理论的不断修正,已经能较好地消解理论存在的不足。我国引入主观预备合并制度是具有正当性基础,符合我国民事诉讼发展的趋势的。在主观预备合并之诉的审判程式的构建上,应摒弃附条件说,只保留其先后位顺位关系,并将其适用限定在法律关系不明的情形中。允许备位被告参与到主位诉讼的审理中来,在主位请求有理由时,对备位请求一并作出判决,以此来保证两诉在上诉审中的裁判统一性,通过确立争点效避免被告可能因再诉而遭受的不利益。

As one of the categories of subjective joinder of action, subjective joinder of preliminary action is becoming more and more important in the modern society because of its unique system advantage. As for the subjective preliminary merger system, although there are many controversies both at home and abroad, the affirmative theory is the dominant one in general, and has been able to clear up the shortcomings of the theory after the affirmative theory scholars’ constant revision. The introduction of the subjective joinder of preliminary action in our country is based on its legitimacy and conforms to the development trend of our civil action. In the construction of the trial procedure of subjective joinder of preliminary action, the theory of additional conditions should be abandoned, and only the order should be kept, and its application should be limited to the situation of unclear legal relationship. The People’s Court allowed the standby defendants to participate in the hearing of the main action, and rendered judgment for the standby requests when the main request is justified, so as to ensure the consistency of judgment of the two lawsuits in the appellate trial, and prevent defendants from any possible disadvantage due to their re-filing of the lawsuit by establishing the validity of the issue.