摘要
现行法下连带债务共同诉讼形态归类存在诸多障碍:连带债务系复数之债的定性使连带债务人无“共同诉讼的必要”,与固有必要共同诉讼不符;若连带债务人抗辩事由仅对自身有效,亦与类似必要共同诉讼“判决合一确定”所要求的同胜同败相异;而归类普通共同诉讼又受管辖权与被告同意合并审的限制,且普通共同诉讼人独立性原则或使共通事实等认定不一。共同诉讼从必要共同诉讼人“绝对相互牵连”的“合”至普通共同诉讼人“绝对相互独立”的“分”之间,应有多样化制度安排,以寻求“裁判统一性”与“当事人主体性”的平衡。为此,应拓展普通共同诉讼范围,并依共同诉讼人牵连程度不同将其分为实质普通共同诉讼与形式普通共同诉讼两种类型。连带债务共同诉讼属实质普通共同诉讼,对共通事实等的审理例外适用牵连性原则,合并审无需被告同意;允许法院依职权追加案外连带债务人为无独立请求权第三人,使本诉判决在追偿之诉中对其产生参加效。
At present,regarding the classification of the form of joint litigation of joint and several debts,there are diverse views in the academic community,different legislative rules,and inconsistent practical approaches,which often fluctuate between necessary joint litigation and ordinary joint litigation.Under the current law,the obstacles in its classification are reflected as follows:the characterization of plural debt makes joint and several debtors not"necessary to participate in the litigation",which is inconsistent with the inherent necessary joint litigation;if the debtor's defenses are only valid for himself,it also differs from the requirement of"unified determination of the judgment"in similar necessary joint litigation,which demands that all parties either win or lose together;and the ordinary joint litigation is limited by jurisdiction and the defendant's consent to joinder,as well as the principle of the independence of joint litigants may lead to inconsistent determinations of common facts.Between the two extremes,from the"integration"which means"absolutely connected"of necessary joint litigants to the separation"that represents"absolutely independent"of ordinary joint litigants,there should be diversified institutional arrangements to balance the relationship between"pursuing the unity of judgment"and"maintaining the subjectivity of the parties".To this end,the scope of ordinary joint litigation can be expanded by means of an extensive interpretation of Paragraph 1,Article 55 of the Civil Procedure Law,and it can be divided into two types,namely the substantial type and the formal type,according to the degree of connection among the joint litigants.The joint litigation of joint and several debts belongs to the substantial ordinary joint litigation,and the"principle of connection"is exceptionally applied to the trial of common facts.Combined lawsuits don't require the consent of joint defendants,and the court is allowed to ex officio add joint and several debtors outside the case as third parties without independent claims,so that the judgment of the present action has the participating effect on them in the action for recovery.
出处
《法学评论》
北大核心
2025年第6期78-88,共11页
Law Review
基金
司法部2024年度法治建设与法学理论研究部级科研项目“多数债权人代位权诉讼的诉讼形态研究”(项目编号:24SFB2018)的阶段性成果。
关键词
连带债务
必要共同诉讼
普通共同诉讼
判决合一确定
当事人追加
Joint and Several Debt
Necessary Joint Litigation
Ordinary Joint Litigation
Unified Determination of the Judgment
Addition of Parties
