On The Unreal Joint And Several Obligation

The concept of the unreal joint and several liabilities is the production of abstraction and systematization of German legal concepts. It plays a positive role in grasping the connection of legal norms, refraining from the contradiction between the individual case justice and overall legal order and forming an organic legal system. The unreal joint obligation is a civil law system developed from the judicial precedent theory. This obligation extensively exists in numerous domains of civil and commercial law; we use this theory to solve many problems frequently. The study on the obligation can help us to grasp its nature, give guidance in judicial practice, vindicate rights of the subject of civil law and preserve society order. In the light of the intention mentioned above, the author pursues studies on the unreal joint and several obligation.The thesis consists of four sections.What the first section discusses is the general introduction of the unreal joint and several obligation. First, the process of developing is given. The concept of the unreal joint and several obligation sprang from Roman law about the division of joint and several obligation .It is formed about two points of theories of joint and common obligation and simple joint and several obligation in German common law period that it was really produced, given up by A iridium, scholar of German. Though fiercely disputed, the unreal joint and several obligation was taken in by most of German scholars, and followed by France,Japan and other civil law countries. Especially in Taiwan, the unreal joint and several obligation was not only adopted to the judgement, but also regulated in legislation.Then, contrast to several kinds of definite analysis, the meaning and component of the unreal joint and several obligation is introduced. The unreal joint and several obligation is the relation of obligation that several obligors shoulder several obligations to the obligee on the basis of different reasons, but with the same target, and among them when a obligor totally fulfils, other obligations eliminate because the obligee's purpose achieves promptly. Its component includes principal part of responsibility, the reasons why the principal part undertakes duties, the contents of fulfillments, the reasons of debts'annihilation, etc.Generating conformation is introduced in section two. The important reason, why the unreal joint and several obligation can not be had partiality for by most countries in the legislation like joint and several obligation, is that it contains various kinds of concrete types that have greater difference and are very difficult to form the unified regulation. solving the intricate dispute between parties properly, combining the representative characteristic of all kinds of the unreal joint and several obligation, which can be used as being distinguished in according with the whole image of the dispute over the unreal joint and several obligation, my thesis tries to look for the generating reasons and pratical conformation of the unreal joint and several obligation .On the basis of considering both interests of obligee and obligor synthetically, the thesis selects"generating conformation"as the criteria for classification, and has designed its mode on a basis of this. In the thesis, the unreal joint and several obligation is divided into five big classes, namely,â… . The unreal joint and several obligation decided by the idea of the party;â…¡.The unreal joint and several obligation based on contract;â…¢.The unreal joint and several obligation founded on several tortious behavior ;â…£.The unreal joint and several obligation on the basis of contract and tort ;â…¤.The unreal joint and several obligation overlapped by other liability stated by the law each other or overlapped with contract or tort.In section three of this thesis presents the effect of the unreal joint and several obligation. Because there is the relationship of obligor and obligee and the right of claim among several obligors, it is divided into two respects, namely external effect and internal effect.Concerning the external effect of the unreal joint and several debt, most of items to one of the obligors can only produce relative effect, such as release, confusing, completion of negative prescription, obligee's delay, judgement confirmed, etc. But the following items will generate absolute effect:â…°.One of the obligors fulfill the debt, all of the obligors will be released. Such as discharge, discharge substituted with things, placing the subject matter in escrow. Set-off and obligee's delay will also produce absolute effect.â…±.The obligee's release and confusing to the ultimate person liable, other obligors will be released correspondingly.It is based on the final responsibility that the internal claim relation of the unreal joint and several obligation. In order to carry out the self-responsibility principle and the fair principle of the private law and solve the out-of-balance situation among the obligors, the law endow the obligor who is not the person liable with the right to repay.There are two kinds of claim way of the unreal joint and several obligation, namely"assigning right of claim"type and"indemnity subrogation"type. Both of two kinds have their advantages and disadvantages. So, direct transfer may be a good choice. The direct transfer means the obligor who has pay the debt will earn the right to repay directly, without the agreement of the obligee.Though the concept of the unreal joint and several obligation was born of the highly abstract Germany law system that melted, but it is not merely put as an ornament of the perfect furnishing of system under the rational thinking. Its sterling worth lies in the legal form contained will be applied practically to the treatment of the real case in the capacity of"appraising"among them. Therefore, the section four of this thesis is about the actual responses of the unreal joint and several obligation.At first, the thesis analyzes the shortage of the unreal joint and several obligation in our country's law systerm. The concern and research on the unreal joint and several obligation in Chinese legal circle has started very late. the current lawmaking level can not reach the level which can solve all of the argument in practice; The count is also not familiar with the unreal joint and several obligation, and some of the justices even know little about it, therefore, the judgement was tangled mass.Then, the thesis gives the suggestion and expectation of the composition of the unreal joint and several obligation .In the legislation aspect ,we should bring the unreal joint and several obligation into our to-be civil code. The unreal joint and several obligation was one of obligations with several creditors or several debtors. If it had been better adopt to our law system, which can make the system of debt law perfect and complete. In addition, , pinpoint the applicable rules of the unreal joint and several obligation in practice, like how to confirm the brief of a case, how to state and enforce the judgement, is also terribly essential.