This article analyzes the issue of adding defendants in the course of litigation.
1. The plaintiff may apply for the addition of the defendant
According to the basic principles of the Civil Procedure Law, it is the plaintiff's right to list who is the defendant, so the plaintiff has the right to sue the defendant and of course can apply for the addition of a defendant in the lawsuit.
However, the court does not always add defendants to the courts, and it is still necessary to review whether the additional defendants meet the requirements of the necessary class action. If the additional defendant meets the necessary co-defendant requirements, the court will order the addition and notify the other parties. If the necessary co-defendant is not met, the court dismisses the application for joinder.
2. The defendant may apply for the addition of the defendant
Article 73 of the Interpretation of the Supreme Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates that if the parties who must jointly conduct the litigation do not participate in the litigation, they shall be notified to participate;The parties may also apply to:CourtsApply for addition. Therefore, according to this provision, the defendant is also a party and has the right to apply for the addition of the defendant. However, whether the defendant should be added or not must be determined by the specific defendantCourtsReview and ask the plaintiff for comments。Of course, the court's review is a review of whether it is necessary to conduct a class action.
After the court's application, whether the plaintiff agrees to the addition or not largely determines whether the addition can be successful. Depending on the defendant's liability, the distinction is as follows:
First, the additional defendant shall bear proportional liability. In this case, the liability between the defendants needs to be handled together and cannot be tried separately, but if the plaintiff does not agree to the addition of the defendant and waives the claim against the defendant being added, the court may not add the defendant and deduct the part of the claim that the plaintiff has abandoned.
Second, the additional defendant bears primary responsibility or supplementary responsibility. If the reason for applying for the addition of a defendant is that the defendant being added should first bear the primary liability for compensation, and the court establishes the reasons after review, it shall add the defendant. If the plaintiff does not agree to the addition and waives the claim against the defendant being added, the premise for the defendant who has already participated in the lawsuit to bear supplementary liability has been lost, and the court shall explain that if the plaintiff insists on not agreeing to the addition and waives the claim against the defendant being added, the court shall reject the plaintiff's claim.
If the defendant applies for the addition of the defendant on the grounds that the additional defendant should bear supplementary liability, and the plaintiff does not agree to the addition and waives the claim against the additional defendant, because this situation does not affect the liability of the defendant who has already participated in the litigation, the court may, on the basis of interpretation, agree to the opinion of not adding and rule that the defendant who has already participated in the litigation bear the corresponding liability for compensation.
Third, the additional defendants shall be jointly and severally liable. If each defendant has the obligation to bear full responsibility for the plaintiff, and the plaintiff does not agree to add or expressly waives the claim for the additional defendant to be applied, this situation does not affect the liability of the defendant who has already participated in the litigation, and the court may not add it. There are exceptions: if the plaintiff only sues the general guarantor, the court shall notify the guarantor to participate in the litigation as a co-defendant, and the defendant (general guarantor) who has already participated in the litigation may also apply for the addition of the guarantor (principal debtor) to participate in the litigation. If the plaintiff does not agree to add the guarantor to the lawsuit, the court shall dismiss the lawsuit;If the plaintiff does not agree to add the guaranteed person to participate in the litigation and expressly waives the litigation claim against the guaranteed person, the court shall reject the litigation claim.
3. The parties concerned cannot appeal against the ruling rejecting the application for addition
According to Article 157 of the Civil Procedure Law, the parties may file an appeal only if the lawsuit is inadmissible, has an objection to jurisdiction, or rejects the lawsuitThe ruling rejecting the application for the addition of the defendant is not the above ruling, so the parties have no right of appeal.
4. After the defendant is added, the plaintiff should change the claim, otherwise the defendant will not bear legal responsibility
After the defendant is added, the plaintiff should change the claim, and only then can the defendant be held liable. In practice, if the plaintiff does not amend the claim, the court will usually dismiss the lawsuit against the additional defendant. (2022) SPC Min Zai No. 185 clarifies that after the court added a third party to the lawsuit, the plaintiff did not change the claim and still claimed that the defendant should bear the responsibility for payment. The court's order that the third party bear the responsibility for payment exceeded the plaintiff's claim and violated the principle of civil litigation of non-prosecution and should be corrected.