On Unreal Joint And Several Liability

Unreal joint and several liability originated from Roman law and was first set forth by Germany, followed by France, Japan, Taiwan and so on. It protects both creditor and debtor and balances their benefits. The author hereafter has made a comprehensive analysis and study on unreal joint and several liabilities in order to introduce the system and establish our own.Unreal joint and several liability means several liabilities which is shouldered by several debtors with the common aim to meet the creditor' s same benefit. It is different from joint and several liability, and concurrence of claims. The attitudes to the difference between the definition of unreal joint and several liability and the definition of joint and several liability vary from person to person. However, all the opinions are based on the same theory that joint and several liability is composed of many liabilities. So these opinions don' t reveal the critical difference. After studying legal relationship, this article draws a conclusion that joint and several liability is a single liability and distinguish unreal joint and several liability from joint and several liability by the number of liability. According to the definition above, the constitutive requirements of unreal joint and several liability includes more than one debtor, different legal relationships and the common aim to meet debtor' s same benefit. On external effect, this article provides new arguments for the consolidation of actions and the right of creditor to claim to one or several debtors at one time or several times, which make up the current theory. As for interior effect, this article studies on the reasonability of debtor' s subrogation in claim based on fairness doctrine.