Juridical argument
In joinder case, juridical result appeals to before partial lawsuit requests to deny essentially, ought to maintain this part lawsuit to request to form repeat sue. To request of this part lawsuit, should rule do not grant to accept; Had accepted, the ruling rejects the prosecution of this part.
Details of a case
Building of water and electricity of irrigation works of city of old state of the Anhui province installs a company (company of water and electricity of irrigation works of Anhui of the following abbreviation) Ceng Yu sued Anhui Jiang He water conservancy project to build limited company 2014 (company of river of river of Anhui of the following abbreviation) , the requirement sentences company of river of your Anhui river to return return the interest that its bid bail reachs the day that reached to pay on March 8, 2012 400 thousand yuan. After court of first instance is tried, the court decision rejects its lawsuit request. Its refuse to obey to the court decision, mention appeal, 2 careful court made final judgment adjudicate 2015, reject appeal, maintain original judgement. This court decision already become effective. After this, company of water and electricity of Anhui irrigation works is corespondent with Gong Mou and company of Anhui Jiang He to to lodge a complaint of court of people of Long Zihu district of city of port of mussel of the Anhui province.
Judgment
Classics of court of people of Long Zihu division tries city of port of mussel of the Anhui province, adjudicate the whole suit that rejects company of water and electricity of Anhui irrigation works requests. After adjudging, company of water and electricity of Anhui irrigation works raises appeal. Classics of intermediate people court tries city of port of mussel of the Anhui province, the ruling rejects what company of water and electricity of Anhui irrigation works is aimed at company of Anhui Jiang He to sue, the court decision rejects company of water and electricity of Anhui irrigation works to request in the light of Gong Mou's lawsuit. This ruling and court decision all already become effective.
Review analyse
Chief dispute is in this case to be sued at accuser whether to form repeat prosecution question. To this, put in two kinds of opinions: A kind of opinion thinks, around two cases party is different, before one case a the accused, hind one case two the accused, differ in view of two cases main body, do not form of course repeat sue; Another kind of opinion thinks, before one case was included essentially after one case, coincide part ought to be maintained sue to repeat, the court ought to be in to accuser hind the lawsuit in one case requests to break up processing. Author approve of the 2nd kind of opinion.
Manage no longer according to the be related of civil suit principle, establish of our country code of civil law prohibit repeating sue a system. Code of civil law the 124th the 5th regulation, to court decision, ruling, mediation the book has produced the case of legal effectiveness, party sues again, inform accuser to apply for rehear, but people court allows the ruling except that nolle prosequi. According to afore-mentioned regulations, if book of court decision, ruling, mediation has produced the case of legal effectiveness to have a mistake truly, accord with review requirement, should give through review process correct, the court decision of cancel primary go into effect, ruling or intercessory book, make new judge. Accord with already wrong surely the principle of correct, what can realize program justice and hypostatic justice again is unified. If allow party to undertake repetition prosecution, damage the authority of judicatory judgment and stability necessarily, the bring a case to court that makes generation of the opposing party unreasonable is tired, appear to adjudicate a result contradictorily each other even. Repeat sueing is the abuse to appealing to authority, answer to prohibit for legal place. But, the complexity as a result of social phenomenon and the contest that civil law concerns close the account such as the phenomenon, the cognizance that sues to repeating in judicatory practice has difference quite. For this, " top people court about applicable < code of civil law of People's Republic of China > explanation " decided the 247th times repeat the essence that sue to maintain a level. This the first section provision: "Party already the item of to lodge a complaint is in litigant process perhaps sue again after juridical become effective, accord with following condition at the same time, form repeat sue: (one) hind appeal to with before the party that tell is same; (2) hind appeal to with before of the litigant mark that appeal to identical; (3) hind appeal to with before the litigant plea that tell is identical, or hind juridical result appeals to before the lawsuit that appeal to requests to deny essentially. " maintain a level according to this, if before substantial affirmation or the lawsuit that after denying, appeal to request the juridical result that appeal to, accuse the request is formed namely after this repeat sue.
According to the code of civil law the 124th the 5th regulation, repeat prosecution cognizance ought to with " case " as compare pair of levels. Afore-mentioned reflect is aimed at that the first kind of opinion of this case is this viewpoint namely. But the author thinks, in judicatory practice, the controversy between party is differentiated, establish is each civil case, basically be for cognizance convenient what what make with the need on judicatory statistic, management is technical processing, the case behaves a form in what just appeal to on property. According to the code of civil law fiftieth 2 the first regulations, party one party is bilateral perhaps for 2 people above, of its lawsuit mark is collective, or of litigant mark is court of same sort, people think to be able to incorporate try and agree via party, for joinder. This shows, in existence of main body of the lawsuit in joinder multiple correspondence concerns, case department is based on joinder to the principal part that tell incorporates and be formed, change and of character, those who have two above is include to appeal to actually in case of a joinder. To prosecution cognizance repeating not to answer in joinder be confined to undertakes contrasting cognizance to all party of whole case, want the lawsuit between partial party to request to form only repeat sue, request of this part lawsuit is formed namely repeat sue. Hereat below case, answer to execute the depart that appeal to to appealing to amalgamatively, form repeat prosecution part to go up to merit manages or be not rejected from the program sue processing. Otherwise, party can be passed completely at will increase or reduce party and make two cases do not have consistency on party whole, if can eliminate to repeat litigant cognizance accordingly, so the purpose that prohibits repeating litigant system comes to nothing completely.
Company of this water and electricity of irrigation works of case prosecutor Anhui ever had sued company of Anhui river river, make final judgment adjudicate via the court, increase Gong Mou to be the accused now, this case is the joinder that incorporate and forms of main body of two the accused actually, this joinder includes the suit in case of previous become effective, company of water and electricity of Anhui irrigation works requests to belong to in the light of the lawsuit of company of Anhui river river repeat sue, answer to reject this to sue from the program, and the litigant request that is aimed at Gong Mou to company of water and electricity of Anhui irrigation works still should undertake hypostatic cognizance.
Additional, joinder includes to be based on the joinder that incorporate and forms of the principal part that tell, with the joinder that incorporate and forms what be based on the object that appeal to, make same processing thinking to be based on the joinder that incorporate and forms of the object that appeal to to also answer.
