Joint And Several Liability

Joint and several liability is not a legal fiction, so the driving force is for meeting the actual need, certainly the logical perfection of the system is also looking for a goal. How to balance the need is to further explore the origin of the system, so diachronic analysis and synchronic research should be gradually carried out. Diachronic analysis should comprehensively grasp the thread to the development system, and synchronic research should be focused on the basic theory of joint and several liability in order to get to know this "the most familiar stranger" by "maintaining the status quo".Research ideas and the main content:Full-text begins with joint and several liability in introduce to the history and trying to understand from far and near. The remaining four chapters is a fundamental issue of interpretation, and thus form a joint and several liability theory and application of basic knowledge. This general structure is as follows:Chapter I induces the historical evolution of the joint and several liability. Memorizing history is not copying history, but contemplating the development of joint and several liability in a different coordinate system. Section I of the development of joint and several liability in ancient society, mainly Corpus Juris modeled, revealing the basic characteristics of the development of joint and several liability.section II mainly studied modern civil law joint and several liability. First thinks the Joint and several liability of the Civil Code provisions similar or different, then sums the basic theory of joint and several liability do not change, but the theory of joint and several liability can not be completely confused by the abstract and generality of the provisions of settlement. Section III is joint and several liability in common law development. Joint and several liability arising from case law develop the typical type of joint and several liability, and empiricism of Anglo-American legal system make contributory negligence, comparative negligence intertwined with the joint and several liability. Extended.application has had some negative impact on the society. The United States launched limit reform of joint and several liability.Chapter II discusses the joint and several liability of the theoretical basis and development trend. Questioned the existence of joint and several liability is that the root causes of whether there should be joint and several liability theory. This personal responsibility for upholding the civil code only relief is not sufficient to adapt to the complex social life. First, contractual society under some special status is the material conditions of existence of joint and several liability, otherwise social solidarism jurisprudence is a legitimate reason. Second, the deterrent function and damages function is the basis of the effectiveness of joint and several liability. Finally, the fairness and efficiency is the existence of the value of joint and several liability basis.Joint and several liability of the development is not uniformity conditions but the present trend of dynamic and rich. The section firstly studies difference and links on joint and several liability from the civil law and common law of the philosophy of law, judicial practice, justice pursuit, finally analyses that joint and several liability is limited application of trend from social and economic development.Chapter III discusses legal status of joint and several liability in the multi-person responsibility. To determine the legal status of joint and several liability is to distinguish between the joint and several liability and other types of liability. Multi-person responsibility should be mainly joint responsibility, after all, individual obligation is relatively simple, this article does not analyze. Joint responsibility usually embodies shared responsibility, in short, shared responsibility is not only the main joint responsibility but also fundament of it. Joint and several liability is debtor should assume full responsibility in external relations and debtor should assume shared responsibility in internal relation. Of course, in exceptional circumstances, no share of relations within the joint and several liability also exists. Although divisible responsibility substantially differs from shared responsibility, in form that is the same. Indivisible responsibility also exist share within the relationship. Supplementary responsibility is characteristic of joint and several liability or shared responsibility, but it is also in accordance with a certain order. Specifically, multi-person responsibility can be divided according to different criteria, according to whether to assume full responsibility for the debtor can be divided into shared responsibility and the joint and several liability, while joint and several liability under certain circumstances can be transformed into shared responsibility in accordance. According to whether payment can be divided, responsibility can be divided into divisible responsibility and indivisible responsibility. Depending on whether performance must follow a certain sequence, responsibility can be divided into the same order and the particular order, just supplement responsibility is the latter type. Joint and several liability with the flexibility and subjectivity has become the most complex types in multi-person responsibility, embodied in the statute,so countries can not ignore that kind of type.Chapter IV analyzes the theory structure of joint and several liability. Provision of Joint and several liability belonging to juridical statute, defining appropriate particularly important, so the concept and composition of the elements of joint and several liability is the important theoretical, but also can guide joint and several liability to apply. Section I defines joint and several liability. First gives a simple description, including its linguistic style and the enactment of legislation, which summed that define part of joint and several liability is provisions of the external validity, rather than the elements of nature. Otherwise joint and several liability is diversity characteristics of the policy and logic, subjectivity and objectivity, which make it difficult for the unified concept, while the formal definition of joint and several liability can accommodate a wider range of joint and several responsibilities, including distinction of joint and several liability and non-real joint and several liability is increasingly blurred. Section II elaborates constitutive requirements of joint and several liability, adhere to the constitutive requirements of the responsibility with its own characteristics combine to form a constitutive requirements of joint and several liability. Joint and several liability of the constituent elements include:multiple persons, same damage, causal relationship between overall behavior and the damage, relevance.Chapter V summarizes types of joint and several liability, and examples joint and several liability. Section I simple overviews types of joint and several liability. Introduced the following four types of joint and several liability, including Subjective Relevance, Subject Relevance, indivisible responsibility, based on the value or policy considerations of the joint and several liability. Each type of joint and several liability is illustrated by concrete application, such as common tort, director and the company’s joint and several liability, anchored to the relationship between the joint and several liability, common risk behavior, celebrity endorsement of the joint and several liability. Of course, the specific circumstances on joint and several liability can not be exhausted, which requires continuous improvement of a single law.This innovation is mainly manifested in the following areas:1.Joint and several liability is given a more systematic study in this paper. At present, the academic study of joint and several liability has mainly focused on the concept of joint and several liability, constitute elements, but also the unreal joint responsibility and joint tort get more attention, result in lacking of research on joint and several liability, as the traditional theory, but it is also be recognized by common law and civil law, its historical evolution and trends of thought contribute to an overall understanding of joint and several liability. Although more people think joint and several liability is instrumental value, many scholars are more concerned about building a system. However, the theoretical basis for joint and several liability are unavoidable, the paper built on the philosophy behind the system and economic fundamentals, effectiveness based on basic values. Also inherent in the system of joint and several liability:joint and several liability, including the legal status, the definition, the constituent elements, the type of joint and several liability, this article also carried out to respond. Full-text from a macro sequence of joint and several liability on the combing to establish the theoretical basis for joint and several liability, joint and several liability summarized trends. View from the construction of joint and several liability system, from the microscopic understanding of certain specific types of joint and several liability.2. this paper has the following breakthroughs:first, through the philosophy of Two Schools of law, justice means, concepts of justice, diversification of damages, impact of the insurance system, joint and several liability was predicted:In order to meet the practical needs, although it will add some new types of joint and several liability, but generally speaking, joint and several liability limitations apply present trend. Second, the concept of joint and several liability can not be made clear, the Civil Code of the joint and several liability with joint and several liability provision was merely a general effect of the performance of the joint and several liability theory, the nature of thinking and can not achieve. As the extension of joint and several liability is very broad, both logical considerations, but also policy-oriented or value of the choice, you can continue to retain joint and several liability does not define a way, but the joint and several liability should be further examined the composition of elements and types. Third, the unreal joint and several liability and joint and several liability is gradually consistent, joint and several liability can include unreal joint and several liability. Unreal joint and several liability should added to joint and several liability, the more consideration to the specific set of rights and obligations. For the occasional acts of the formation of joint and several liability is not really based on "can not benefit from the illegal activities," the principle of responsibility. Anyone should be shared within the relationship. Fourth, the proposed joint risk behaviors as perpetrators is unknown, of unknown causal relationship between the two conditions limit does not belong to a joint tort, but on the values and policies set by type of joint and several liability. Fifth, the "relevance" starting point and analysis of the composition of joint and several liability and types of elements that joint and several liability associated with subjective psychological reflects the logic of joint and several liability, indivisible liability reflects the value of joint and several liability, the subject in specific relation is logical and value relection.This inadequacy is mainly manifested in the following areas:1. Germany’s joint and several responsibility of examining the more mature, but because of my German is limited, combined with the lack of German data, so the basic theory of joint and several liability is not in-depth analysis.2. Collected information is mainly in English foreign language materials, information is not comprehensive enough, so summing up the development of joint and several liability tends to be more affected by the Anglo-American legal systems.3. Type of joint and several liability is too simple, not necessarily fully reflect the joint and several liability cases. In addition to the selection of specific types of joint and several liability, due to involve more of the relevant theoretical knowledge, some analysis of a lack of theoretical depth.