摘要： 以必要共同诉讼作为理论依据和适用标准的职权追加,本应具有确定性和一致性,但在司法实践中却出现了裁量追加、单向追加甚至追加第三人的多样化规则。广泛存在的职权追加司法解释,可分为基于实体法上共同行使权利、承担义务的实体型共同诉讼追加,基于司法实践中查明事实和判决执行需要的程序型共同诉讼追加和以第三人为对象的第三人追加三个阶层,三者可进一步归为实体法原因和程序法原因两个类型。实体型追加真正对应必要共同诉讼,遗漏当事人导致的二审发回重审、再审撤销原判决、裁定应限于此种情形。程序型追加虽可帮助诉讼程序的顺利进行,但案外人未参加诉讼不影响当事人适格,诉讼效率和裁判效果的考量应由当事人自己判断,可由职权追加转向释明追加。

关键词: 职权追加, 必要共同诉讼, 第三人, 事实查明, 判决执行, 释明追加

Abstract: While the exofficio addition of party, which is based on and applies the same criteria with compulsory joinder, should be certaint and consistent, in judicial practice there have been diversified rules for discretionary addition, one-way addition and even additions of third party.Widespread rules (as judicial interpretation) of exofficio addition of party can be divided into three levels: substantive addition of joinder, which is in line with the need to jointly exercise rights or undertake obligations under substantive law, procedural addition of joinder, which is aimed at fact-finding and enforcement of judgment in judicial practice, and addition of third-party.These rules can further be categorized into two types: substantive-type addition and procedural-type addition.Substantive-type addition really corresponds to the compulsory joinder, the omission of the parties in the to the second trial or retrial leads to revocation; procedural-type addition can make the proceedings more smoothly, but the outsiders not participating in the litigation does not affect the standing requirement of the parties.The parties themselves can consider the efficiency and the effectiveness of litigation, so procedural-type addition can be transformed into the addition of party through interpretation.

Key words: Exofficio Addition of Party, Compulsory Joinder, Third Party, Fact-Finding, Enforcement of Judgment, Addition of Party Through Interpretation