In civil proceedings the defendant can apply for additional defendants

    In the civil trial practice, often the plaintiff defendant not request for the proceedings to assume responsibility, this is the additional party situation. So in the end, the defendant can apply for additional other defendant in the lawsuit,The author in a traffic accident the day before yesterday also encountered this problem.The author thinks, the accused in the civil action can apply for additional defendants should be depending on the circumstances, to distinguish whether the case is necessary joint action and the common joint action cases.

     Legal basis: according to the "Civil Procedure Law" 119th stipulates: "the common litigants must not take part in the proceedings, the people's court shall notify them to take part in the proceedings." The Supreme People's court "on the application of 'people's Republic of China Civil Procedure Law' opinions on several problems of" the fifty-seventh stipulation: "the common litigants must not take part in the proceedings, the people's court in accordance with the provisions of the civil procedure law 119th notice its participation; the party also may apply to the people's court for additional, the people's court presented by the parties the application, shall review the application, unreasonable, the court rejected; if the application is reasonable, written notice by the additional party to participate in the proceedings."

    One, in the following the case in civil litigation, the defendant can apply for additional defendants. According to the relevant provisions of the judicial interpretation, the specific circumstances necessary common lawsuit caused by including:

    1, link. The individual industrial and commercial households, individual partnership or titular collective enterprise and private enterprise engaged in production and business activities in the name of the collective enterprises, in the proceedings, the individual industrial and commercial households, individual partnership or private enterprise and its affiliated collective enterprises as the common litigants.

    2, the actual operator and the business license owners do not agree. That is the owner registered on the business license and the actual operator is not consistent, joint action for the owner and the actual operator.

    3, an enterprise as a legal person. An enterprise as a legal person which civil activities before the occurrence of disputes, CO litigants to divided enterprise.

    4, an individual partnership. That is all the partners of partnership in the lawsuit as the common litigants.

    5, to borrow a business letter of introduction. The loan of a business letter of introduction, the contract between the seal gap, special contract or bank account, the lending entity and the borrowing of artificial joint action.

    6, lawsuit of inheritance. In the lawsuit of inheritance, part of inheritors file the lawsuit, the people's court shall notify the other heirs to participate in the litigation as a co plaintiff.

    7, the joint and several liability in the agency relationship. The principal and agent shall bear the responsibility for even responsibility, joint action.

    8, common property litigation. The common property right is infringed, some person has the right to sue, the other co owners shall be listed as the common litigants.

    9, joint liability guarantee. In the joint responsibility to ensure that the lawsuit, the creditor to the grantor and grantee also claims rights, the people's court shall grantor and grantee as a co defendant.

    According to the Supreme People's court in 2000 December promulgated the "on the application of 'Guaranty Law of the people's Republic' interpretation of several issues", the specific circumstances can cause also includes necessary joint action:

    1 branches of enterprise legal persons, provide guarantee for others, the people's court in the trial of cases of disputes can be guaranteed in the enterprise legal persons to participate in the litigation as a joint defendant. But the branches of an insurance company, commercial bank can provide guaranteed except

    2, general guarantee of the creditor to the debtor and guarantor in conjunction with the lawsuit, the people's court may the debtor and guarantor column to participate in the litigation as a joint defendant.

    3, the creditors petition the people's court to exercise real right for security, the debtor and guarantor shall participate in the proceedings as a joint defendant.

    4, the same debt have both guarantee and the property security, the parties dispute lawsuit, the obligor and the guarantor, the mortgagor or pledgor may participate in the suit as a joint defendant.

     In addition, according to the Supreme People's Court promulgated April 16, 2001 "on the trial of labor dispute case applicable legal interpretation" provisions, the original employing unit with a new employer and common infringement by the people's court, shall be of the employing unit and the laborers as a co defendant.

Necessary joinder:

    Only a part of the common litigants prosecute or responding to the situation, this requires additional party. The additional party by the people's court in accordance with the terms of reference of additional, can also according to the parties apply for additional.

    At the same time, additional defendants must provide relevant evidence. In order to prevent wrong additional defendants, whether it is under the authority of a court to append or the defendant apply additional, should have the evidence to prove the defendant and the plaintiff has interest relationship is added, the existence of common rights and obligations and has participated in the proceedings the defendant, if the defendant cannot provide evidence, it shall reject the application for unreasonable grounds.

    Additional defendants shall timely put forward. The defendant additional defendants application should be the time control in this lawsuit has been filed the lawsuit is underway, in principle should be limited to the court before the end of. Specific situations should be distinguished: such as additional defendants on the statutory time period in the proof, the burden of proof should be in before the expiration of the term of proposed additional; such as additional defendants relevant statutory time in evidence after the expiry of the period of preparation before the trial court investigation stage, the defendant should be before the end of the court investigation additional; as for special causes additional defendants for legal reasons in time after the end of the court debate court investigation stage, the judge shall strictly examine, prevent the defendant to unreasonable delay or hinder the proceeding according to law. To really meet the statutory conditions, in accordance with the law to add, and decided to courtroom investigation, survey or restore the court investigation; for after the court debate over the proposed additional application, the judge shall not be re courtroom investigation, supplement or reinstate the investigation ", should be in accordance with the relevant provisions of the civil procedure law" continue to try and make the referee. On exceeding the time limit and delay of the proposed additional application, the defendant has the right to put forward corresponding program lost the right to defense, the judge should not make any additional notice in accordance with the terms of reference, to face all the additional application, shall be dismissed, and inform the defendant in accordance with the law, or by a separate prosecution timely appeal of legal remedy, and to ensure the efficiency of aging and judicial procedure.

    Two, while the common joint action in civil litigation, the defendant can't direct additional defendants case, listed as follows.

1,The practice of employer Employee Relations Responsibilities: the employee causes damage to others in hiring activity, the victim to prosecute only employees, not to sue the employer's case, it depends, only employees of gross negligence or willful actions as necessary common lawsuit people, as the defendant's employees, employers can apply for additional the defendant. Otherwise, no additional employer as the defendant, the plaintiff shall be deemed to give up to the employer.

   2In practice, the motor traffic accident liability in case of disputes, the plaintiff only in the vehicle and the owner, but not to sue the insurance company, in case of vehicle insurance, for the loss, the ultimate responsibility is the insurance company, but the plaintiff is not to sue the insurance company, in this case, the owners should be how to relief their rights. Because in this case, the insurance company is not directly the traffic accident, the defendant cannot append the insurance company for the defendants in the case, unless the court should be added or the plaintiff agreed to an additional powers, otherwise, in the common case, the defendant cannot append the defendant, but may add third people to participate in the proceedings.

     From the basic principles of civil, the defendant apply additional defendants violated the civil litigants free disposition principle or not to ignore the basic principle. The so-called don't tell refers to prosecute the acceptance stage, only the plaintiff or defendant counterclaim request of the case, the court may hear the case in court, in the process of cutting to the or the defendant appeals range constraint, in principle the court on appeal outside the range of the non trial.

Now that the plaintiff did not prosecute a subject, is to exercise its right of performance, the defendant as adverse consequences may bear for additional defendants, instead of the plaintiff to clarify the right exercise, the plaintiff, is clearly contrary to the true meaning of the plaintiff said. Because in the civil action, the plaintiff did not want to exercise their rights or give up the right circumstances, no one can replace the exercise of these rights.

 Starting from the concept of equality, the defendant apply additional defendants is contrary to the original, the defendant equal rights, equal basic concept of the rule of law. The plaintiff must advance payment of litigation costs, a defendant must advance litigation fee, but the defendant apply additional defendants, is accused in the absence of the payment of any fee, then "Prosecution" another defendant, the requirements of litigation costs and advance the prosecution is not equal, contrary to the basic principle of equality before the law.

    The end is as follows: the defendant apply to change or add to the parties, the defendant is accused of a right in litigation, also facilitate the court found the facts of the case, distinguish between truth and falsehood responsibility. But the court on whether to allow the defendant before the application, shall solicit the opinions of the plaintiff, the plaintiff agreed, change, additional defendants;The plaintiff did not agree, must participate in the proceedings of the cases, the application for a ruling, dismissed the at this time, the defendant can apply for an additional third people to participate in the litigation as.