論請求權競合時訴的客觀合併之形態

On the Objective Joinder of Claims in Concurrence of Claims

"為緩解“案多人少”矛盾,很有必要以妥當處理請求權競合糾紛為切入點,拓展訴的客觀合併制度的研究。與我國《民法典》第186條規範目的相符合的是請求權自由競合說與擇一實現說。依據實體法的規定、學說及我國訴訟標的理論、訴訟制度,訴訟實務中可能出現規模化的後續訴訟。訴的客觀合併具有現實必要性和理論上的應然性。隨著請求權競合現象增多,為了充分保障當事人權利、一次性解決糾紛,應儘快確立完整的訴的客觀合併制度。就訴的客觀合併的具體形態而言,不宜以客觀預備合併應對請求權觀念競合現象。請求權觀念競合時采競合合併較為適宜。請求權現實競合時可允許選擇合併與客觀預備合併。"

"In order to alleviate the contradiction of heavy caseload and under-staff situation, it is necessary to expand the research on the objective joinder system of litigation from the perspective of properly handling the concurrence disputes of claims. The theory of free concurrence of claims and the theory of alternative realization are consistent with the normative purpose of Article 186 of China’s Civil Code. According to the provisions and theories of substantive law and the theory and system of litigation object in China, there may be large-scale follow-up litigation in litigation practice. The objective joinder of litigation has practical necessity and theoretical necessity. With the increase of concurrence of claims, in order to fully protect the rights of the parties and solve disputes at one time, a complete objective joinder system of claims should be established as soon as possible. As far as the specific form of objective joinder of litigation is concerned, it is not suitable to deal with the phenomenon of concurrence of claims with objective preparatory joinder. When the concept of claim coincides, it is more appropriate to adopt the alternative joinder. As far as the real concurrence of claims is concerned, the parties can be allowed to choose the selective joinder or the objective preparatory joinder."