In the judicial practice of civil litigation, different causes of action and claims set out by parties involved in similar cases can result in vastly different or even completely contrary outcomes.

For example, in the case of a fund transfer without a written contract, a party and its legal counsel are often cautious and hesitant about the cause of action to pursue due to the circumstances and the evidence collected. This is the case in private lending, unjust enrichment or other contract disputes. The hesitation and caution, based on the circumstances and the evidence collected, are because the court may have different interpretations as to whether a contractual relationship has been established, further leading to substantially different rulings.

The authors’ recent case concerning a housing tenure transfer agreement pertaining to a rural homestead may serve as another example. In this case, recognition of the contract’s nature is crucial. As there is still debate on the nature of housing tenure transfer agreements in judicial practice, parties will have to risk seeking other remedies or even being left without recourse if the nature of the contract is not recognised by the court as expected.

To address the issue in one go and mitigate the client’s burden of a lawsuit as much as possible, the authors conducted a full investigation and decided to plead alternative claims, after which the case was successfully filed. This article shares the authors’ reflections and findings into alternative pleading and to encourage its broader use.

The concept

Alternative pleading (“pleading in the alternative”, or “alternative claims”) is a form of pleading that allows a plaintiff in a court action to allege against the same defendant in the same legal relationship two mutually and sequentially associated claims. If the first claim (the primary claim) is held invalid or insufficient, the court will then decide on the second claim (the alternative claim).

Applicability

In practice, not all situations warrant alternative pleading. Based on the authors’ understanding, the following conditions should be met for an alternative claim to be considered:

(1) With different causes of action, the primary claim and the secondary claim tend to be sequentially and mutually exclusive, and therefore cannot be established at the same time. In the case of concurrent liabilities, say, between tort and breach of contract, where both could be established at the same time, alternative pleading shall not apply.

(2) Both the primary claim and the alternative claim should be clear and specific. In accordance with China’s Civil Procedure Law, the filing of a lawsuit must include specific claims, facts and causes of action. Therefore, in case of alternative pleading, both the primary claim and the alternative claim should contain the specific claim with supporting facts and causes of action.

(3) The primary claim and the alternative claim should address the same legal facts and legal relationship. An alternative claim is typically prepared for possibly different interpretations of the same legal facts and legal relationship, rather than for different legal facts or legal relationship per se, while in the latter scenario alternative pleading shall not apply.

(4) The defendant should be clearly identified and consistent. Arising from the same legal facts, the primary claim and the alternative claim are to target the same and specific defendant. Legal relationships with other parties should be addressed in separate lawsuits.

Judicial practice

Despite limited application in judicial practice and lack of explicit stipulations in law, alternative pleading has been supported and encouraged by the Supreme People’s Court (SPC). In Yuan Hesheng v Lida Real Estate Development (2019), the SPC considered the second claim brought by the plaintiff as an alternative claim after the first claim was unsuccessful, which is called a joinder of claims in the theory of litigation law and not in violation of the Civil Procedure Law.

Similarly, in Bayi Farm v Jinchang Cement (Group) (2019), the SPC found that both of the plaintiff’s claims met the filing standards set by the Civil Procedure Law, and ruled both claims should be accepted and processed, so that the plaintiff could turn to the second claim if the first was held insufficient.

Local courts in Beijing, Shanghai, Jiangsu, Zhejiang, Tianjin and Guangdong have also supported alternative pleading, as evidenced by cases such asBeijing Shengkaiqiao Petroleum Products v Beijing Xianglong Property Management (2020), Kele Film & Television Culture Communication v Beijing Huaxiaxing Juli Film Culture (2021) and China Unicom Shanghai Branch v Shanghai Haizhi Construction & Engineering (2021).

Additionally, in article 52 of the Guiding Opinions of Chongqing Higher People’s Court on Several Legal Issues of Current Civil Trial, it is expressly stated that alternative pleading should be supported.

The significance

The adoption of alternative pleading is both well justified and practical. First, it aligns with the principle of procedural economy, helping to avoid repeated lawsuits using the same facts. Rather than modifying claims on judicial clarification in the course of litigation, alternative pleading attempts to address issues from the outset and reduce uncertainty, saving judicial resources and reducing litigation costs for the parties involved.

Second, it serves to maximise the parties’ interests in one single case by providing optimal protection of their legal rights and facilitating one-off settlement of disputes. More importantly, it reflects the principle of the courts to resolve disputes and promotes consistency in judicial decisions.

Implementation and prospect

The implementation of alternative pleading from legal theory to judicial practice is a challenging journey. Numerous issues still require further study and exploration in practice, such as jurisdictional conflicts arising from varied causes of action between the primary and alternative claims, and inconsistent application standards for alternative pleading. It is our belief that continual application and exploration by legal professionals will boost the development of relevant laws and judicial interpretations in a more clarified and specific manner.