The Action of Partitioning Res Communes Staggered by Procedural Doctrina and Non-contentious Doctrina

There is much dispute about the nature of the action of partitioning res communes in our theoretical field, which has caused great divergence and misunderstanding in the practical trial, and there are frequent cognitive deviations that characterize the partitioning action as unjust enrichment return litigation or confirmation litigation of joint property rights, which will lead to the court’s surprise judgment, incomplete trial, unclear basis for execution and other issues. The action of partitioning res communes relies on the discretion of the court, determines the appropriate partitioning methods according to the case, and is non-contentious by nature. Even if the partitioning methods determined by the court according to ex officio doctrine is not declared by the parties, it does not violate the principle of disposition, and also do not applicable of adversary doctrine. The action is the procedures of inherent necessary joint action, res litigiosae of the action should be determined in accordance with the whole parties, otherwise the capacity to be a party may be considered incomplete. In the action of partitioning res communes, the point of penetration for staggered application by procedural jurisprudence and non-contentious doctrina is the determination of partitioning method, the point of junction for staggered application is the nature of formal action of formation.