The Research On The System Of The Joint And Several Liability

The joint and several liability refers to a liability that each of the subjects of liability must take all of the mandatory legal consequences for breaking the law. In retrospect, the joint and several liability can be traced back to the era of Roman law. In terms of the rights guaranteeing and proceeding efficiency, this ancient system works better than any other system. However, reflection on the values of joint and several liability has mounting among an growing number of countries considering a breakthrough in the principles of liability. The legislation of the joint and several liability in China has been developing with rapidity in recent years with even a tendentious expansion in the field of judicial practices. Therefore, it's of great importance for a theoretical development of the joint and several liability system and judicial practices in our country by reflecting over the system thoroughly and radically as well as learning from the other countries.Through a historical and comprehensive approach, this paper has made a relatively systemic research on the joint and several liability system based on our existing legal theories combined with the judicial practices by borrowing research findings from other countries and Taiwan. This paper ends with my opinion as for how to improve our joint and several liability system. It aims to encourage and inspire more people to come up with much more valuable theories so that increasing attention from the academic and practical fields will be diverted towards the research of the joint and several liability, which will certainly further the perfection of legislation and the progress of the judicial practices in China.The paper comprises of five parts which are summarized as below:Part I: the basic theories of the joint and several liability system. First, the paper has made a detailed comparison between debts and liability. After having differentiated the joint and several liabilities from the joint and several liability, it brings up the concept of joint and several liability, which refers to a liability that each of the subjects of liability must take all of the mandatory legal consequences for breaking the law. Secondly, according to its course of development, the basic joint relations of joint and several liability have been categorized into the following four: joint identity, joint intention, joint interests and joint action. Finally, the paper has made a systemic analysis on the internal and external legal relations of joint and several liability. Part II: the differences between the joint and several liability and other liability forms. The paper has made a thorough distinction between the joint and several liability and other liability forms which could be easily confused with the former one in legal practices. It includes the distinctions between proportionate liability and the joint and several liability, the supplemental liability and the joint and several liability, the supplementary liability and the joint and several liability.Part III: the values and thoughts of the joint and several liability system. The paper first has made a brief introduction to the historical development of the joint and several liability system and then generalized the values of the joint and several liability system in terms of guaranteeing the rights, etc. Lastly, the paper introduces some thoughts originated from France, Britain, the United States, etc. on the joint and several liability system and sheds some light on the negative values of the joint and several liability system.Part IV: an analysis of the status quo of our country's joint and several liability system. First, breaking from the restrictions of departmental laws and taking the causes of the joint and several liability as the angle of view, the paper has analyzed the legislation of our joint and several liability system. Then it points out the shortness of our country's joint and several liability in terms of its application in legislation system, concrete regulations, expansion of judicial interpretation, etc.Part V: suggestions on improving our country's joint and several liability system. In accordance with the shortness brought up in Part IV, the paper has given suggestion from four aspects: first, the joint and several liability system should be legislated; Second, regulatory principles of joint and several liability should be stipulated. Third, clarify the distinctions between the joint and several liability system and other systems which are similar to the joint and several liability system. Fourth, establish a fair and efficient joint and several liability proceeding.