Research On The Unreal Joint And Several Obligation

The unreal joint obligation is a law issue which extensively exists in numerous domains of civil and commercial law. It has been found and put forward first by a German scholar named Arlitioly. The conception is confirmed in the period of German Common Law based on joint obligation theory, and gradually it extended and evolved from pure joint obligation. So far, the legislation of all the countries in the world has not regulated it clearly, it is to say, this theory has not been systematized by law in force. However, for long time, Germany, Japan and many other countries all developed the theory by using various doctrine and hypothesis. It can be put into solving some law issues in the process of practice.Recently, with the development of China's economic, more and more cases at law about the unreal joint obligation have emerged. However, on one hand, because the unreal joint obligation has not formed extensive discussion in China, many officials are not quite familiar with the conception and features of it. They kept a fixed thinking of joint obligation and divided obligation in the level of obligation. Some even can not recognize this relation of the unreal joint obligation from the complex connection. On the other hand, to some judges who learn a little about the the unreal joint obligation,there are obvious differences and ambiguities when they deal with the procedure and entity. A series of questions make the study of the unreal joint obligation become a law system ,the nature of theory or the value of institution. Consequently, it has become a urgent task in the field of Chinese Civil Law to provide a mature and efficient technical project for the unreal joint obligation .It will promote the modernization of Chinese legality.The first chapter begins with the history of the unreal joint obligation, which introduces the development of the unreal joint obligation in the whole world, especially in Chinese mainland and Taiwan area.The second chapter is about the conception of the unreal joint obligation. At a beginning, it introduces many famous people's opinion and sums up the similarities and divergences. Several superficial standpoints about the number of the obligation,take place occationaly are also mentioned. Finally, the author put forward his own opinion according to some universal definition on the unreal joint obligation.The third chapter is about component elements. In accordance with the law of mainland, any completive legal item has to consist of two parts: (1) component elements abstracted by certain specific case. (2) effect resulted by the fact of the legal case. If the component elements were realized, it should be responsible for the special effort of the legal case. In the author'view, the purpose of summarizing the component elements of the unreal joint obligation lies in"exactly identify"the unreal joint obligation's law relationship. Paying much attention to the conception made by others, the author induce the component elements into four aspects: 1. the subject of the unreal joint obligation:The number of debtor is large. 2. the occurrence of the unreal joint obligation: Several debtors run into debt to creditor according to their own law relationship. 3. the object of the unreal joint obligation: Each debtor undertakes the whole duty to pay damages to creditor respectively. When one of the debtors performs his duty, all other debtors will be exempt from the obligation. The object of each debt is to guarantee one interest of the debtor. The subjective aspect of person concerned when the unreal joint obligation establishes: There is no subjective connection between those debtors.The fourth chapter is about the type of the unreal joint obligation. The thesis pays much ink in classifying the unreal joint obligation from the reasonable angle. Through analyzing the advantage and disadvantage of traditional methods,we divid the unreal joint obligation into five big classes. In addition , the thesis also views the problem from some other different angles.The fifth chapter is about the effort of the unreal joint obligation. When we regard the unreal joint obligation law relationship as a entirety to study its effect, it is available to adopt the same way with joint obligation , that is to say, the effects of the unreal joint obligation are also divided into the relationship between debtors and the creditor, as well as that among debtors. The former is called the external effect of the unreal joint obligation. Instead, the latter is called the internal effect of the unreal joint obligation.As we know, there are two contradictious"independent"and"related"features in the unreal joint obligation. Both can make much influence on the unreal joint obligation by appearing serious opposition. So when the rights and responsibilities are arranged, we should regard the"value"as an evidence, which is expected by the establishment of the unreal joint obligation system. Since the value contains multipliment and levelment,we should make sure the higher level to be realized first, and then protect the lower level to be realized. This is a wise arrangement. Firstly, the main function of the unreal joint obligation: increase the probability of creditor's interests through multipel guarantees of several independent requiry rights. Therefore, this is the most important value. Secondly, on the base of above, try best to protect the benefits of debtors. From here, the author set forth the systematic arrangement on the efficiency of the unreal joint obligation.The sixth chapter is about comparativeness between the unreal joint obligation and neighbor system. By comparing with each other, the author hopes to learn deeply about the characteristics of the unreal joint obligation, which includes: 1. comparison with joint obligation. 2.comparison with coincidence of claim. 3.comparison with the obligations of common dangerous acts. 4.comparison with third party invade creditor's rights.