| It is very difficult to define the object of action, but it is not a question without answer. All the representative countries in both common law system and continent law system have made their definite choice about it. Our judicial practice is chaotic in this aspect. Many courts hold on the traditional route, but the Supreme Court deviate from the tradition in the EOS case and the Kunpeng case, and the opinion in those two cases are different from each other. This disorder should be ended.Continent law system has not noticed the transaction theory in the American law. According to the transaction theory, the plaintiff should present all the claims arising out of the same transaction. The transaction theory reminds us that, the difference between the old theory and the new one are not confined to their attitudes to the concurrent substantive rights. The new theory is not thoroughly in solving the dispute once for all, for it cannot prevent the claimant from re-litigating on the different claim from the non-concurrent rights. The relative theory omits the benefit of the defendant and the rational use of judicial resources. Although the transaction theory is not perfect, its defect is common in all the theories.Our courts reject the alternative joinder of claims, and most of them also oppose the hypothetical joinder. Our Civil Procedural Law is strict with the amendment of complaint, the pretrial procedure cannot help parties to dig out facts sufficiently, the quality of judges is not high, and most of parties cannot hire lawyers. All these reality factors determine that we have no condition to adopt the transaction theory, the new theory or the relative one. It is the unique choice to adopt the old theory at present, but we should make efforts to adopt the new theory and the transaction theory in the future. |
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