| Supplementary liability was first a theoretical concept of civil law,which was used to interpret the guardian’s liability stipulated in paragraph 2 of Article 133 of the General Rules of Civil Law,and was later adopted by judicial interpretation and the Tort Law as a legislative term.Before the judicial interpretation stipulates the supplementary liability of the obligor of maintaining safety,the supplementary liability has not received much academic attention.After that,the academic circles have done more research on the supplementary liability for infringement,and there is not much in-depth and systematic research on the supplementary liability from the perspective of the whole civil and commercial law in theory.There are many issues that need to be studied in depth for supplementary liability: What is the theoretical root of supplementary liability? What is the connotation of supplementary liability ?Is supplementary liability an independent form of liability of several persons in nature?What is its institutional value? What are the applicable preconditions and scope of supplementary liability? What is the position of supplementary liability in legislation?How should the effectiveness rules be designed? Focusing on the above issues,this paper makes an in-depth and systematic study on China’s supplementary responsibility from the following aspects.Chapter I examines the origin and development of supplementary liability legislation in China.From the perspective of its generation and development,The application of supplementary liability in the field of civil and commercial law is extensive.However,the legislative expression and effectiveness rules of supplementary liability lack unity,and the original application of supplementary liability in the field of tort law is still questioned by the academic circles.Chapter II mainly studies the basic theoretical issues of supplementary liability in China,including the theoretical root,connotation,nature and institutional value of supplementary liability.The theoretical root of supplementary liability is the theory of generalized concurrence of claims.Described from the perspective of the person liable,generalized concurrence of claims is multi-person liability.Joint and several liability is the mode of multi-person liability usually adopted in the legislation of various countries,but the adoption of the legal mode of joint and several liability in some countries will inevitably produce a blank area of legal adjustment,and the internal effect of joint and several liability is not justifiable in some cases,resulting in the theoretical concept of unreal joint liability.In terms of external effect,unreal joint and several liability allows the obligee to freely choose the subject of liability,which will inevitably cause repeated legal action.Ordering of external responsibilities of the responsible subject by supplementary responsibilities is the reform of the effect of unreal joint and several liability and the deepening of the adjustment of generalized concurrence of claims.On the basis of distinguishing the characteristics of the supplementary liability and its normative intention analysis,the supplementary liability can be defined as: supplementary liability is a kind of ancillary liability when several people bear different levels of liability for the same debt or the same damage,if the primary person liable cannot assume the whole liability,the secondary person liable will bear the rest part of the responsibility and can therefore recover from the main person liable.This definition embodies the different positions of primary liability and supplementary liability,as well as the design of liability sequence and recovery right based on the balance between the interests of parts and efficiency of litigation.By comparing the effectiveness of supplementary liability with joint and several liability and unreal joint and several liability,it is found that supplementary liability has certain uniqueness.If it is classified as joint and several liability,it will inevitably lead to the legislation to modify the effectiveness of joint and several liability,and then produce a large legislative cost.If it is classified as unreal joint and several liability,it is difficult to achieve the purpose of reducing the burden of the person liable with supplementary liability.From the perspective of legal methodology,the normative intention,external effect and internal effect of supplementary liability are different from those of unreal joint and several liability,which can support it to be an independent multi-person liability form.The institutional value of supplementary liability lies in that this form of liability improves the distribution system of multi-person liability in China,promotes the integration of damage relief jurisprudence and reality,and improves the litigation efficiency of multi-person liability.Chapter Ⅲ The third chapter studies the applicable premise of supplementary liability in our country.The applicable premise of supplementary liability solves the exclusion of the application of joint and several liability,so the theory of distinguishing joint and several liability from unreal joint and several liability is also the theoretical basis for determining the applicable premise of supplementary liability.Reverse thinking from joint and several liabilities must be at the "same level",the applicable premise of supplementary liability is that several liabilities must be generated for different reasons and do not belong to the same level.In view of the diversity of state of responsibility concurrence,the judgment of hierarchical liability should be made according to different concurrent situations and to different standards.In the case of Concurrence of several tort liabilities,the hierarchical judgment of liability is more complex.The operational judgment method is to consider the causal relationship between each tortfeasor and the damage,the difference in the degree of fault,and whether to benefit from the tort as factors,take the above factors as comparative items for quantitative analysis,compare the liability difference values of several tortfeasors,and seek the critical point of the liability difference value from quantitative change to qualitative change.If the difference value of responsibilities exceeds the critical point,it can be recognized that several responsibilities are not at the same level.Chapter IV copes with the application scope of supplementary liability in China.To define the scope of application of supplementary liability,we need to distinguish the boundary between supplementary liability and adjacent areas at two levels.The first level is multi-person liability.At this level,we need to draw a clear line between supplementary liability,joint and several liability and untrue joint and several liability.The specific definition rules are as follows: first,if the law clearly stipulates "supplementary liability",it can be directly determined.Secondly,if the order of responsibility can be interpreted according to the text of legal norms,it is recognized that the circumstances regulated by the norms apply to supplementary responsibility.Thirdly,the former two specifications can be applied by analogy.The second level is the level of several person tort liability.At this level,it is necessary to draw a clear line between supplementary liability and the non-intentional contact infringement liability by several people.Specifically,on the one hand,as a special norm,the norms of tort supplementary liability have priority applicability.On the other hand,if the law stipulates to assume "corresponding liability",it can be interpreted as supplementary liability if it meets the applicable premise of tort supplementary liability.Because there are some differences on the scope of supplementary liability in educational circles,it is necessary to use the above rules to identify the "supplementary liability" in China’s positive law one by one.Chapter V proposes the system conception of supplementary liability.From the perspective of ought-law,China’s legislation should uniformly stipulate the effectiveness of supplementary liability in the civil code,and generally stipulate the order of different levels of liability in the "Civil Liability" Chapter of the General Provisions of the Civil Law.From the perspective of reality,in the absence of unified provisions on the effectiveness of supplementary liability in the Civil ode,in order to ensure the unity of the effectiveness of supplementary liability,various types of supplementary liability should be classified,and the legal norms with relatively complete effectiveness provisions in each type should be regarded as the analogy applicable norms of the same type of supplementary liability.As a multi-person liability,the effectiveness of supplementary responsibility should include the external and internal effectiveness between each responsible person,as well as the effectiveness of a personnel item on others.In terms of the external effectiveness of the supplementary liability,the legislation should clearly give the supplementary responsible person the right of discussion.In terms of internal effectiveness,the legislation should clearly stipulate the right of recourse of the supplementary responsible person. |
