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Research On The Types Of The Action Of Joint And Several Liability

Posted on:2009-09-06Degree:MasterType:Thesis
Country:ChinaCandidate:Z G LiangFull Text:PDF
GTID:2166360245474367Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
There are different viewpoints about the action types of joint and several liability in different countries. In China, it's also a issue that need to be lucubrated in law theory. The main point of this article is to distinguish the ultimate characteristic of join and several obligation and the relationships of it. And in the scope of forms of action, we makes the cross researches between civil law and civil procedural law. In this article, the theories on object of action and parties, the theory of consolidation of actions and theory on the forms of actions were used to expound the opinion.This paper begins with the basic substantive law of join and several action. The first chapter is about law relationships of join and several obligation in the view of procedural law, especially the review of relationship between join and several obligation and join and several liability, joint tort and so on, in the field of civil procedural law. On the basic of researches on substantive law, it can be differentiated into "inherent" join and several obligation and "preapre" join and several obligation, that makes the possibility of the diversity of action forms of different types of the action of joint and several liability. The contention of action form reflects the compatibilities and conflicts between substantive law and procedural law. The article just talks about the action and action forms evoked by external factors, and it puts the focal point in the operation of the action of joint and several obligation in current laws; whether the theories on action form can manage the action of joint and several obligation or not; the superiors or inferiors of the action of joint and several obligation in each action form.The second chapter discusses the form of joint action and the form of single action. The differences between "inherent" action of join and several obligation and "preapre" action of join and several obligation in action object lead to the differences in action forms. In traditional theory of object of action in China, there are indie, implicated relations in plural action object of action of joint and several obligation, that makes it misfit the "inherent" action of joint and several obligation. The "preapre" action of joint and several obligation (action of joint tort) and "the action of joint and several liability based on co-ownership debt" should use the inherent necessary joint action. For the respect of option right of creditors in substantive law and the necessity of syncretic definiteness of each joint debtor, "inherent" action of joint and several obligation should be done with similar indispensable joint action. Then the article discuss the single action form of joint and several obligation, and makes it focal point the discussion about the action forms of joint and several obligation in the process the single action form of joint and several obligation changing into the form of joint action.Based on the systemic analysis of the above chapters, the creditor's multiplex option and the defects in the theory of action forms, the third chapter is about the reconstruction and refactor of theories on action type. Through the macroscopical analysis on civil substantive law and civil procedural law, and the microscopic analysis in the situation of joint and several obligation, it proofs that it is necessary to take different action forms to deal with "inherent" or "perapre" joint and several obligation. To settle this dilemma, in the tendency of the cooperation pattern of litigation, this article leads into the litigants' duty of advance litigation and the judge's command rights in action, and then design proper type of action form and it's procedure, to build the multiplex system of action of joint and several obligation. To those action of "perapre" joint and several obligation and "the action of joint and several liability based on co-ownership debt" that adopted the inherent necessary joint action, we can deal with the necessity of joint action flexibly, to prevent the value derogation of civil procedural leaded by the necessary participation of joint debtors. And we should use the form of similar necessary joint action to deal with "inherent" action of joint and several obligation, to make sure the syncretic definiteness of each joint debtor in common maters.
Keywords/Search Tags:Joint and several liability, The types of action, Inherent necessary joint action, Similar necessary joint action, Common joint action, Object of action
PDF Full Text Request
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