Research On The Unreal Joint Obligation

The unreal joint obligation is the product of abstracted and systematic legal way of thinking of Germany's conceptualist jurisprudence, which plays an effective role in grasping the linkage between legal norms, avoiding contradiction between the justice of individual cased and the integration of legal order, incorporating the specific and loose legal norms of unreal joint obligation disputes into the organic legal system. However, at present, the concept and disposal of the unreal joint obligation are not yet clarified in civil laws of China and need to be improved. The basic principle and law applicable rules of the unreal joint obligation is solved through the analysis and summary of the unreal joint obligation, wishing the theory of the unreal joint obligation can be further improved and developed in order to give an impetus to the resolution of disputes among legislature, judicial practice and relevant practical questions, to better protect the legal interests and rights of civil subject and maintain the harmony and stability of social order. This thesis is divided into 4 parts.In part-1, it is the introduction of the unreal joint obligation. It is from ancient Roman and the origin is in German, which is the special product of Germany's jurisprudence of which the way of thinking is abstraction and system. The author strives to find a more accurate definition of the unreal joint obligation through the analysis of the mainstream viewpoints of different scholars on the unreal joint obligation, which is, most debtors make payment based on different reasons which is accidentally to be the same nature, and all debtors'debts which are within the scope that has been fulfilled are eliminated because of one debtor's fulfillment. What should be emphasized is that one debtor's fulfillment can not lead to the elimination of the entire debts. The definition of the unreal joint obligation presented by mainstream viewpoints is over strict. Based on the definition, legal characteristics of the unreal joint obligation are illustrated, including five aspects as the plurality of subject, the variability and contingency of the reason for the incident, the sameness of payment details, the independence of the claim right and the certainty of true assumption of debts, meanwhile, the concept of final creditors and their position in the unreal joint obligation is pointed out and it is concluded the unreal joint obligation is the coincidence of the claim right in broad sense by analyzing the relationship between the unreal joint obligation and the right of claim.Actually, the unreal joint obligation is the permutation and combination of debts caused by different reasons. Reasons for the emerging of civil debts can be divided into two categories: the one based on legal acts and based on legal regulations. By using classification way different from before and from the perspective of reasons for civil debts, main types of the unreal joint obligation which is formed by occurrence of legal debts and voluntary debts are listed and analyzed. The author strives to deepen the understanding of the unreal joint obligation by thinking it from the perspective of categorization, and also distinguish the unreal joint obligation and right encroachment by several persons without deliberate contact in the concurrent types of several right encroachment behaviors. Next is the comparison between the unreal joint obligation and joint debt. As the unreal joint obligation is extended and evolved from joint debt, it is vital to make comparison. There are essential differences of these two in reasons, subjective purposes, and right of recourse, external potency, responses to credits and debts and legislatures and others. The special type of joint debts is joint strict behavior of right encroachment which is different from——other common encroachment of right because of the uncertainty of the injuring person. This paper also makes comparison between this and the unreal joint obligation to make the theory of the unreal joint obligation clearer.In part-2 is on the recognition and responsibility assumption of the unreal joint obligation. The recognition is the foremost prerequisite for case disposal. Only by the analysis of its constitutive elements can the nature of debts be accurately judged whether it belongs to the unreal joint obligation or not. The constitutive elements of the unreal joint obligation requires plural and unified debtors in subject, in which the objective condition is the sameness of payment details by several debtors and the subjective condition is that debtors have no common purpose and contact intention and they have independent debts based on different reasons. Supplementary liability has no difference with the unreal joint obligation. It is an improved design of the unreal joint obligation. Here, in this paper, it is confirmed that supplementary liability is a special form of the unreal joint obligation.The responsibility assumption of the unreal joint obligation includes debtor's debts to creditors and mutual assumption within debtors, which is also the legal effect of the unreal joint obligation. This article analyzes the legal effect from eternal and internal aspects. For the circumstances with final debtors, according to the related stipulations of China at present, this paper holds that whether creditors'power of exempting liability from final debtors can be extended to other debtors should be handled based on case to case difference, and concludes that it can not be extended to other debtors in principle, however, can be extended in special provisions. The internal potency of the unreal joint obligation is that there is no recourse right among debtors (excluding final debtors).In part-3 is the litigation remedy of the unreal joint obligation. Considering the absence of clear definition and applicable rules of unreal joint obligation theory in legislature, in the judicial practice, the disposal of cases of the unreal joint obligation is disordered. It is necessary to clarify how to apply the theory of the unreal joint obligation in the judicial practice. This article holds the opinion that it is party's right to choose litigation, however, from the theory of the unreal joint obligation and protection of party's interests, it is not suggested to sue all debtors as codefendants. In the exercise of litigious right, it is advised that when both final persons liable and the court have jurisdiction, the case can be adjudicated jointly; also the gist of the case be defined by the legal relationship of final persons liable and the statement be changed properly to adapt to the theory of the unreal joint obligation.As to the application of the unreal joint obligation theory in judgment, the author also offered some views. Firstly, the existing rules and principles in procedural laws and entity laws of legal relationship involved in the unreal joint obligation should be focused on in order to find legal evidence to solve such disputes. Only there are no legal evidence in relevant procedural laws and entity laws can we apply the relating theory. Meanwhile, the right chosen by the party should be respect and the right of explanation can be excised by the judge if necessary.It is recommended that there should be execution sequence when the case of the unreal joint obligation is executed, in which the judgment against final debtors should be first carried out as possible. If there were no final debtors, execution quotient of all persons'judgment executed can be settled by the court or through negotiation with the purpose of reducing unstable factors of society and achieving relative justice. In order to prevent creditors gaining dual compensation, executing organs should place high focus on the opposition to execution proposed by persons against whom judgment is executed.After the liability assumption of non-final debtors, their right of recourse stem from the right of subrogation. It is suggested that the judicial organ state the recourse right of non-final debtors in adjudicating jointly unreal joint obligation cases and accept this judgment as the evidence of recourse execution application of non-final debtors in order to reduce the overlap litigation of non-final debtors.In part-4 is the theory of the unreal joint obligation of China, and its present situation of legislature and thinking on legislature. In the theory thinking, this paper analyzes the wordage of the unreal joint obligation. There is contradiction of using debts and liability in theory circle. Therefore, the article finally decides to use the phrase the unreal joint obligation which is more appropriate. Besides this, the necessity of the existing of the unreal joint obligation theory is confirmed here. Also, the legal and judicial interpretations involved in the unreal joint obligation are analyzed, in which the predictive discussion is made on whether the theoretical thinking of the unreal joint obligation is used in legislature which is in the 122nd Article of current General Provisions of Civil LAW. As the present stipulations response only to prudent problems in judicial practice and can not resolve fully all disputes involving the unreal joint obligation, it is necessary to include the system of the unreal joint obligation into our legislative system.In the last part of the paper, the author offers advices and expectation on the establishment of the unreal joint obligation system, wishes the state can develop short-term and long-term goals to incorporate the unreal joint obligation into future civil laws.