| Based on the procedural policies such as fact-finding, cost-reducing and contradictory judgments-avoiding, the procedure-oriented criteria of compulsory joinder has been established in China, resulting in the generalized application of compulsory joinder and “different judgments in similar cases”. In practice, parties often object to jurisdiction on the grounds of the non-identity of the subject matter of the action, and appeal or even apply for a retrial on the grounds of the omission of the necessary co-litigants. The implementation of the Civil Code has not been able to change the procedure-oriented model, while the substantive law-oriented explorations through judicial interpretations and typical precedents have instead blurred the line between compulsory and permissive joinder. The Chinese model of joinder is more procedure-oriented than the Soviet Union, and expansive and arbitrary application of compulsory joinder is the inherent drawbacks of this model. The substantive law-oriented model exists in two forms, that is, the plural subject matter of litigation, represented by the German law, and the single subject matter of litigation, represented by the Swiss law. The single subject matter model is more suitable for the transformation of the rules of compulsory joinder under the Civil Code, which means emphasizing the decisive role of the substantive law in the purpose of compulsory joinder, limiting the concept of “the same subject matter” in the narrow sense, reshaping the basic types of the inherent/similar compulsory joinder and the close/loose permissive joinder according to the characteristics of China’s substantive law, recovering the effect of compulsory joinder coherent with the legislative meaning of Article 135 of the Civil Procedure Law, and improving in a coordinated way the procedure-oriented permissive joinder at the same time. |
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