On the Procedural Construction of the Joint Trial of Subrogation Litigation：Focusing on Paragraph 2 of Article 37 of the Interpretation of General Principles of Contracts of the Civil Code

Paragraph 2 of Article 37 of the Interpretation of the General Principles of Contracts of the Civil Code provides for the joint trial of subrogation litigation, but the specific form of litigation and the model for distributing the secondary claims are controversial. In terms of litigation forms, the joint trial of subrogation litigation can be categorized into the theories of ordinary joint litigation, similar necessary joint litigation, and single action. Since Article 537 of the Civil Code establishes the principle of direct compensation as the legal effect of subrogation litigation, the form of litigation for the joint trial of subrogation actions in China should be that of ordinary joint litigation . As for the distribution model of secondary claims, the front-loaded distribution model faces difficulties in achieving its intended goals, has poor coordination with enforcement and bankruptcy procedures, and conflicts with the principle of independence among co-litigants. Enforcement procedures serve the function of finalizing civil rights and interests; therefore, a back-loaded distribution model should be adopted for the distribution of secondary claims. The secondary claims distribution procedure, as a process for handling competing enforcement, should take “the secondary claims being insufficient to cover the debts” as the initiation requirement and adopt the principle of egalitarian distribution. Substantive disputes arising during the process can be resolved by reference to the procedure for participation in distribution.