Not Really Joint Debt Research

The concept of Unechte Solidarit t was first introduced in Germany, then accepted bymany Civil Law countries theoretically and practically, however, this concept has notaccepted in legislation. The concept is the continuance of the duality of joint obligation andpure obligation while Germany was a Common Law country, also it is the result of limitationfor Article421of German Civil Law Code. Since the promulgation of the German Civil LawCode, the German scholars felt that the provisions of Unelchte Solidarit t was toowildly-covered, not refined. Thus, the German scholars have been attempting improve thedefinitions on important conditions theoretically, as to set up a practical standard besides thelegal provisions. The consequence then shows that the application of joint obligation excludesUnechte Solidarit t, for the limitation of the range of joint obligation application. In China,the argument on Unelchte Solidarit t also exists. For a long time, the study on UnechteSolidarit t has been rooted in the understanding of joint obligation, and the study usuallybased on the definition of the concept, spices, and effectiveness; the theory is developed in theforms of theory and case. Likewise, Chinese legislation does not involve Unechte Solidarit t.Howsoever, more and more cases emerged as to the field in Unechte Solidarit t, but as aresult of absence of Unechte Solidarit t legislation, the application of law is not adequate.Although Tort Liability Law has not technically used the concept of Unechte Solidarit t, itstill applies settlements for four concrete cases, which materially admits the existence ofUnechte Solidarit t in legislation. The question for Unechte Solidarit t has brought a greatconfusion because the joint obligation is always deemed as the most complicated debtorsconcerned. The study on Unechte Solidarit t can make clear the related concepts, make abetter understanding for legislative provisions, and be beneficiary to the practical problems.This paper is based the existence of Unechte Solidarit t cases.Besides preamble, this paper is divided into six chapters:Chapter One: the historical prototype of Unechte Solidarit t. In the ancient times, the application of Unechte Solidarit t didn’t bear the meaning of share debts. In Roman lawperiod, joint obligation rule as a form for protecting creditor has been applied widely, yet theidea of Unechte Solidarit t has not appeared. Roman Law has a very strict limitation for jointobligation rule, one limitation was for parties concerned to make a contract, the other wasdirectly according to the law. Application of law didn’t correspond to the interpretation ofjoint debt, it just could be interpreted as a particular rule or law. In the case that could beapplicable for the joint obligation, the case of Unechte Solidarit t would be excluded. In theCommon Law period of Germany, it was divided into joint obligation and pure obligation,which caused a length argument on singular and plural nature about obligation, as well aswhether there would be free or non-free. Duality was also the source of German law period toclarify the joint obligation and Unechte Solidarit t t. From a historical point of view, Romanlaw saw joint obligation as a obligation for debt but not debt itself. This point of view may bethe departure point for us today to study the Unechte Solidarit t. Common law made aconceptual classification of joint obligation which in Roman law applied in several debtors’cases, and common law didn’t exclude the use of Unechte Solidarit t. Such classification isable to treat the joint obligation and several debtors differently, and also it is better for get asolution on the different cases, to avoid the paradox in some concrete case.Chapter Two: Unechte Solidarit t is the outcome of the theory of joint obligationlimitation. German scholar introduced the theory of Unechte Solidarit t on the ground ofduality of joint obligation, and excluded the condition which several debtors in differentreasons for the pure obligation from joint obligation. Afterwards, scholars formed a series oftheories on debt’s reason, common objects, jointly payment, jointly implementation, based onthe scope of joint obligation application, which can be distinct from joint obligation. All thoseefforts are to fulfill the target of completing the concept of joint obligation. Accordingly, thescholars hence enlarged a certain feature into a common feature, then it may become animportant condition, which failed to explain why the legal joint obligation would bereasonable. So, it is clear that the efforts to make a common important condition are just invain. As a matter of fact, the joint obligation doesn’t real exist. As a set of rule, joint obligation is a method, which ensures the rule is applicable widely. Yet the rule cannotabstract all complicated cases’ feature. The only way to drive an objective judgment is tomake types and make objective comparison. To study the real joint obligation and UnechteSolidarit t, we should go back to traditional theory of duality.Chapter Three: the comparative study on Unechte Solidarit t. Since the introduction ofUnechte Solidarit t, it hasn’t been admitted by the statues the world wide. Through the studyof Germany, France, Japan and China’s condition on Unechte Solidarit t, it is obvious that theUnechte Solidarit t has been admitted in the aspects both in theory and practice. In Taiwan,the Unechte Solidarit t has been regulated in the draft of its Civil and Obligation Law, thoughit hasn’t been passed, it still remains a proof that people admit its existence to some extent. Inthe Tort Liability Law of China, there are four types of cases that can fit Unechte Solidarit t,which also shows the necessity and value of its existence. German Civil Law Code doesn’thave clear provision on Unechte Solidarit t, while its application is very wide, thus can beused in many conditions concerned with several debtors. Neither do German’s theory andpractice have any trace of Unechte Solidarit t In Japan, some scholars think that the UnechteSolidarit t is more protective to creditors that joint obligation. Scholars in Taiwan hold theview that absolute effectiveness belongs to the choice of value, which will not affect thedifference of joint obligation and Unechte Solidarit t. Therefore, we can see that even theconcept of Unechte Solidarit t has not been admitted in legislation, but in the theory andpractice, it has gained a lot of supports, which demonstrates the reason of Unechte Solidarit t.Chapter Four: the nature and meaning of Unechte Solidarit t. In this chapter, the natureof Unechte Solidarit t has been proved, and the legal meaning of its existence has been listed.The nature of debt is payment, the condition which debt is paid by several debtors doesn’tform a new type of debt, it just makes the condition of payment more complicated. Thenatures of Unechte Solidarit t and joint obligation are the same in the sense that the debtorswill complete the payment. Thus, the birth of Unechte Solidarit t was accompanied withnegative voice, among which, the most representative voices may be mergence theory of jointobligation, apparent joint obligation, negative duality theory, overlapping of the right of claim, and inseparable debt. However, the foresaid theories cannot deny the difference in applicationof Unechte Solidarit t. The effectiveness brought by the joint obligation has proved that theexistence of Unechte Solidarit t is valuable. In the scope of joint obligation, by setting types,it is possible to distinguish the real joint obligation and Unechte Solidarit t, and possible tofigure out the vagueness of common joint obligation and legal joint obligation, the relationsbetween rule of joint obligation and several debtors, hence it can provide guide for the severaldebtors. This is the meaning of admitting the Unechte Solidarit t cases.Chapter Five: the difference between Unechte Solidarit t and other several debtors. Inthis chapter, it investigates the detachable debt, proportionate debt, real joint obligation, andsupplementary obligation, in order to distinguish their difference with Unelchte Solidarit t.Detachable debt is a debt that can be detachable and its nature is debt, which lays a foundationfor several debtors to share the obligation. Proportionate debt, real joint obligation are dividedby the forms of obligations, among which, the base is objective payment, and the conditionwill be subjective payment, while the Unechte Solidarit t is the same with common obligationfor the debtors to pay. As for the supplementary obligation, it is deemed as a special form ofUnechte Solidarit t. Though it has some overlaps with detachable debt, component debt, realjoint obligation, it’s still possible to make the division. Through analyze, the objectiveness ofthe Unechte Solidarit t is probed.Chapter Six: the reflection on Unechte Solidarit t system. To reflect the UnelchteSolidarit t system, this chapter deals with the aim from three aspects which are: definitions ofthe concept, effectiveness, and typology. Unechte Solidarit t is the outcome of limitation onjoint obligations’ scope. Actually, the joint obligation doesn’t exist, and people cannot found auniformed concept of joint obligation, which can only be an abstract from several debtors.This kind of abstraction cannot distinguish case from case, thus the paradox appears. In thissense, the definition of Unechte Solidarit t cannot depend on the material conditions, but backto the original typology, which can consequently ensure it differ from joint obligation. Theessence of Unechte Solidarit t is that the payment should be made by different people fordifferent reasons, one debtor’s payment can eliminate other debtors’ obligation. As the debt may be independent, in the view of effectiveness, the main aim is the payment rather thanother things. Because Unechte Solidarit t bears the difference of reasons, in absolute items, toconsider value weights more than logic elementary. Requirement for the payment under thehelp of claim right and assign system, it is obviously different with joint obligation. To realizethe requirement for the payment, it is necessary to call for the claim right and assign rightsystem. In fact, these two systems are different in the path for payment requirement. Besides,to divide the Unechte Solidarit t in types depends on whether the reason is the same andwhether there is special provision in current law can smooth the way of better understandingof the system, moreover, makes it easier in application of legal practice.The main purpose of this thesis is to probe into Unechte Solidarit t from the perspectiveof methodology, on the view of value evaluation to discuss the absolute validity and relativevalidity of jointly obligation, and classify the cases applicable for the real joint obligationcases. It is supposed to point out the essence of Unechte Solidarit t is that it can be applied toseveral debtors in the case of joint obligation, and the feature is that the debts all individuallyexist as different reasons, moreover, its payment objective is towards the same direction, onthe other hand, the subject of creditor bears no connection. On the point of view of validity,absolute validity cannot solely be judged by simple logics, it is necessary to judge on the basisof value, so as to balance the interests of debtors. Still, this thesis might be inadequate tocertain problems, as in limitation theory of real joint obligation, relations and applicationsbetween logical judgment and value, the standards to divide the Unechte Solidarit t cases, allthe problems mentioned need further research in the future.