類型化視角下訴訟請求合并的程式展開

實踐中，同一原告往往向同一被告提出數個訴訟請求，從而構成訴的客觀合并，法院對其合并審理可以減輕當事人訟累、節約司法資源、提高訴訟效率并防免矛盾判決。根據數個請求之間的關係，訴訟請求合并一般分為單純合并、預備性合并與選擇性合并。由于2015年民訴法司法解釋要求合并的各請求必須“基于同一事實”，因此實踐中將訴的單純合并排除在外。又因我國對請求權競合采“選擇消滅”模式，幾無適用選擇性合并的空間。至于預備性合并，在起訴時又面臨請求難以特定的敗訴風險：我國訴的合并要件可能因過于嚴苛而喪失適用的廣泛性。有鑒于此，是否許可訴的客觀合并，原則上應限于適用同一訴訟程式，并不要求各請求基于同一事實產生。即便當事人提出合并的申請，是否合并仍然取決于法院裁量。對于當事人提出的數個訴訟請求，法院可以依職權進行訴的分離，但當各請求之間具有關聯性時應限制分離。

In practice, the same plaintiff often submits several litigation claims to the same defendant, thus constituting an objective joinder of causes of action. The joint trial can reduce the burden of the litigants, save judicial resources, improve the efficiency of litigation and prevent contradictory judgments. According to the relationship between several claims, the objective joinder of causes of action can be divided into joinder of simple causes of action, joinder of preliminary causes of action, and joinder of selective causes of action. The Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China issued in 2015 requires that each claim must be based on“the same facts”in the case of joinder of causes of action. In practice, the joinder of simple causes of action is excluded. And due to the adoption of“selective extinction”model when dealing with the overlap of claims, there is almost no room for joinder of selective causes of action. For the joinder of preliminary causes of action, there is a risk of losing the lawsuit as the claims are difficult to specify. The elements of the joinder of causes of action might be so strict that it throttles a widespread application. In view of this, the objective joinder of causes of action should, in principle, be limited to the application of the same proceeding and does not require that the claims be based on the same facts. Even if the litigant files an application for joinder of causes of action, it still depends on the court’s discretion whether to carry out the joinder. For several litigation claims submitted by the litigants, the court may separate the litigation according to its authority, but when there is correlation between the claims, such separation should be restricted.