Viewpoint... Can the defendant apply for additional defendants in civil litigation?

Published:

2021-12-25

1. Foreword Adding a defendant refers to the act of adding a relevant natural person, legal person or other organization as a defendant in a civil lawsuit upon the application of the parties to the case or the people's court ex officio. Regarding "whether the defendant can apply for additional defendants", there are different opinions in the field of procedural law and the practice of civil litigation trial. Part of the view that "the defendant can not apply for additional defendants", the main reason is that the basic principle of civil procedure law is not to sue, the plaintiff has the right to sue the defendant, apply for additional defendants, in the case of the plaintiff did not apply for additional defendants, the defendant has no right to apply for additional defendants. Another part of the view that "in a necessary joint action, the defendant has the right to apply for additional defendants", the main reason is that according to the current civil procedure law interpretation, in a necessary joint action, the parties have the right to add a necessary joint litigant to participate in the proceedings. Then, the "defendant" as a party to the case, that is, the right to apply for additional defendants, submitted to the court for review. This paper mainly discusses the problem of adding defendants in necessary joint litigation. 2. legal basis for additional parties According to Article 132 of the the People's Republic of China Civil Procedure Law and the Supreme People's Court on the Application<中华人民共和国民事诉讼法>The parties may add necessary co-litigants to participate in the proceedings. The parties include the "defendant". Therefore, according to the current law, in the necessary joint litigation, the defendant can apply for additional necessary joint litigants to litigate and submit them to the court for review. Specific provisions: 1. the People's Republic of China Civil Procedure Law Article 132 If a party who must jointly conduct a lawsuit fails to participate in the lawsuit, the people's court shall notify him to participate in the lawsuit. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Article 73 If a party who must jointly conduct a lawsuit does not participate in the lawsuit, the people's court shall notify him to participate in accordance with the provisions of Article 132 of the Civil Procedure Law; the party may also apply to the people's court for additional. The people's court shall examine the application filed by the parties, and if the reasons for the application are not tenable, it shall rule to reject it; if the reasons for the application are tenable, it shall notify the additional parties in writing to participate in the proceedings. Practical Views in the Trial of 3. Litigation After reviewing the relevant cases, there are different views on whether the defendant can apply for additional defendants in the practical trial. The court examines the "defendant's application for additional defendants" and mainly examines the following three conditions: 1. Whether the additional defendant is a party who must jointly conduct the lawsuit; 2. Whether the plaintiff agrees to the addition; 3, whether to apply for additional within the prescribed time limit. (Regarding the time limit for adding defendants, the law does not specify it. In trial practice, it is generally conducted before the end of the court debate in the first instance procedure.) 4. legal provisions on necessary joint action 1. the People's Republic of China Civil Procedure Law Article 52: If one party or both parties are two or more, the subject matter of the action is common (necessary joint action), or the subject matter of the action is the same type, and the people's court considers that it can be tried together with the consent of the parties (ordinary joint action), it is a joint action. If one of the parties to a joint action has common rights and obligations with respect to the subject matter of the action, the action of one of them shall be recognized by the other joint litigants and shall be effective against the other joint litigants; if there is no common rights and obligations with respect to the subject matter of the action, the action of one of them shall not be effective against the other joint litigants. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Articles 54, 58 to 60, 63, 65 to 67, 70 to 72, 74 and 76 of the judicial interpretation of the civil procedure law stipulate that some litigants must proceed in the form of joint litigation. In addition, articles 307 and 308 of the enforcement objection also stipulate joint litigation. Article 73 stipulates that if a party who must jointly conduct a lawsuit does not participate in the lawsuit, the court shall notify him to participate. Article 42 makes it clear that "if a party who must jointly conduct a lawsuit does not participate in the lawsuit because he or she cannot be attributed to him or his agent ad litem", he may apply for a retrial. Combined with Article 124, after the objection to the execution of the outsider is rejected, provisions are also made to allow a retrial as long as the person outside the case is a party to the necessary proceedings. It can be seen that the judicial interpretation of the Civil Procedure Law, on the basis of Article 132 of the Civil Procedure Law, clarifies the legal consequences of necessary joint litigation, emphasizing that in the trial of necessary joint litigation cases, all joint litigants must participate in the litigation, otherwise it may lead to the initiation of a retrial. 5. of the circumstances under existing law that should be included as a co-defendant or additional co-defendant (I) the Supreme People's Court on the application of<中华人民共和国民事诉讼法>the explanation." Article 54 Where a party engages in civil activities in the form of affiliation, and the party concerned requests that the affiliation and the person to be attached shall bear civil liability in accordance with the law, the affiliation and the person to be attached shall be co-litigants. Article 58 During the period of labor dispatch, if the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall be the party concerned. If the parties claim that the labor dispatch unit shall bear the responsibility, the labor dispatch unit shall be the co-defendant. Article 59 If the business operators registered in the second paragraph (individual industrial and commercial households) business license are inconsistent with the actual business operators, the registered business operators and the actual business operators shall be the joint litigants. Article 60 In a lawsuit, all the partners of an individual partnership who have not registered and obtained a business license in accordance with the law shall be joint litigants. Article 63 In the case of a division of an enterprise as a legal person, the enterprise after the division shall be the joint litigant in any dispute arising from civil activities prior to the division. Article 65 Where a business introduction letter, special seal for contract, sealed blank contract or bank account is borrowed, the lending unit and the borrower shall be joint litigants. Article 66 If the creditor claims its rights against both the guarantor and the guarantor in a lawsuit brought as a result of a guarantee contract dispute, the people's court shall list the guarantor and the guarantor as co-defendants. If the contract of guarantee is a general guarantee and the creditor sues only the guarantor, the people's court shall notify the guarantor to participate in the proceedings as a co-defendant; if the creditor sues only the guarantor, it may list only the guarantor as the defendant. Article 67 If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian shall be co-defendants. Article 70 In a lawsuit for inheritance, if some of the heirs sue, the people's court shall notify the other heirs to participate in the lawsuit as co-plaintiffs, and if the notified heirs are unwilling to participate in the lawsuit and have not expressly waived their substantive rights, the people's court shall still list them as co-plaintiffs. Article 71 If the plaintiff sues the agent and the agent and claims to bear joint and several liability, the agent and the agent shall be co-defendants. If the plaintiff sues the agent and the counterparty and claims joint and several liability, the agent and the counterparty are co-defendants. Article 72 If the common property right is infringed by another person and some of the co-owners sue, the other co-owners shall be joint litigants. Article 287 After the people's court accepts a public interest litigation case, other organs and relevant organizations that may initiate litigation according to law may apply to the people's court for participation in the litigation before the court session. If the people's court permits to participate in the proceedings, it shall be listed as a joint plaintiff. (II) (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases Article 27 If an employing unit employs a worker whose labor contract has not yet been terminated, the original employing unit may list the new employing unit as a third party in a labor dispute with the worker. If the original employing unit brings a lawsuit on the grounds of infringement by the new employing unit, the laborer may be listed as a third party. If the original employer files a lawsuit on the grounds of joint infringement by the new employer and the worker, the new employer and the worker shall be listed as co-defendants. (III) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents Article 22 When hearing a case of compensation for damages in a road traffic accident, the people's court shall list the insurance company that underwrites the compulsory traffic insurance as a co-defendant. However, the insurance company has already paid compensation within the scope of the compulsory insurance liability limit and the parties have no objection. If the people's court hears a case of compensation for damages in a road traffic accident, and the parties request that the insurance company that underwrites commercial triple insurance be listed as a co-defendant, the people's court shall grant permission. the People's Republic of China Civil Code of (IV) Article 168 Where two or more persons jointly commit a tort and cause damage to others, they shall be jointly and severally liable. Article 1,169 Whoever instigates or helps another person to commit a tort shall be jointly and severally liable with the perpetrator. Whoever instigates or helps a person with no capacity for civil conduct or a person with limited capacity for civil conduct to commit a tort shall bear tort liability; if the guardian of the person with no capacity for civil conduct or a person with limited capacity for civil conduct fails to perform his duty of guardianship, he shall bear corresponding liability. Article 170 Where two or more persons commit acts endangering the personal or property safety of others, and the acts of one or more of them cause damage to others, and the specific infringer can be identified, the infringer shall bear the responsibility; if the specific infringer cannot be identified, the perpetrator shall bear joint and several liability. Article 171 Where the tort committed by two or more persons respectively causes the same damage, and each person's tort is sufficient to cause all the damage, the perpetrator shall be jointly and severally liable. Article 172 Where two or more persons separately commit a tort causing the same damage and are able to determine the size of the liability, they each bear the corresponding liability; if it is difficult to determine the size of the liability, they bear the liability equally. Article 195 Where a network user uses a network service to commit an infringement, the right holder shall have the right to notify the network service provider to take necessary measures such as deletion, blocking or disconnection. The notice shall include the preliminary evidence constituting the infringement and the true identity information of the right holder. After receiving the notice, the network service provider shall promptly forward the notice to the relevant network user, and take necessary measures according to the preliminary evidence and service type of infringement; if it fails to take necessary measures in time, it shall be jointly and severally liable for the expanded part of the damage with the network user. If the right holder causes damage to the network user or network service provider due to the wrong notice, he shall bear the tort liability. Where the law provides otherwise, such provisions shall prevail. Article 124 Where a motor vehicle that has been assembled or has reached the standard for scrapping is transferred by sale or other means, and damage is caused by a traffic accident, the transferor and the transferee shall bear joint and several liability. Article 1241 If the loss or abandonment of highly dangerous goods causes damage to others, the owner shall bear tort liability. If the owner hands over the highly dangerous goods to others for management, the administrator shall bear the tort liability; if the owner is at fault, he shall bear joint and several liability with the administrator. Article 1242 If the illegal possession of highly dangerous goods causes damage to others, the illegal possessor shall bear tort liability. If the owner or manager cannot prove that he has done a high degree of care to prevent illegal possession, he shall be jointly and severally liable with the illegal possessor. Article 1252 Where the collapse or collapse of buildings, structures or other facilities causes damage to others, the construction unit and the construction unit shall bear joint and several liability, unless the construction unit and the construction unit can prove that there are no quality defects. After the construction unit and the construction unit have made compensation, if there are other responsible persons, they shall have the right to recover compensation from other responsible persons. If the collapse or collapse of a building, structure or other facility causes damage to others due to the owner, manager, user or third party, the owner, manager, user or third party shall bear tort liability. (V) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Personal Injury Compensation Article 2 Where a compensation right holder sues some joint infringers, the people's court shall add other joint infringers as joint defendants. If the right holder of compensation waives his claim against some of the joint infringers in the lawsuit, the other joint infringers shall not be jointly and severally liable for the share of compensation that should be borne by the defendant whose claim has been waived. Where the scope of liability is difficult to determine, it is presumed that the joint infringers bear the same liability. The people's court shall inform the holder of the right of compensation of the legal consequences of the abandonment of the claim and state the circumstances of the abandonment of the claim in the legal document. Article 4 If a helper who provides labor services without compensation causes damage to others in the course of helper activities, the helper shall be liable for compensation. If the helped worker assumes the liability for compensation and then recovers from the helping worker who has intentional or gross negligence, the people's court shall support it. If the helped worker explicitly refuses to help, he shall not be liable for compensation. (VI) the Supreme People's Court on the application of<中华人民共和国公司法>(III) on Certain Issues Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. (VII) the qualification of the subject of litigation for more than two joint creditors or joint debtors. In the case of a loan dispute in which the joint creditor is two or more persons and only one or some of the lenders file a lawsuit, the people's court shall notify the other lenders to participate in the lawsuit, except for other lenders who expressly waive their rights to the borrower. If other lenders who have waived their claims file a separate lawsuit against the borrower, the people's court shall not accept it; if it has already accepted it, it shall rule to reject the lawsuit. For joint debtors, two</中华人民共和国公司法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

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