Not Really Joint Liability Research

The unreal joint and several liability was originated in Germany common law period. As it developed to today, it is valued by legislators for its policy considerations. It is more meaningful to inspect differences between the unreal joint and several liability and the joint and several liability for the judicial practice, instead of pursuing the perfection of the concept of the unreal joint and several liability. There are several features of the unreal joint and several liability, for example, whether there are the independence of the reason of the cause, whether there are the common payment purpose, whether there are the debt burden of all the debtor, whether there are the final person liable, the applicable principles and the legal effect. All these features can help us distinguish the differences between the unreal joint and several liability and the joint and several liability effectively. The unreal joint and several liability also has several unique legal values, for example, avoiding the sacrifice of the interest of the non-finality person liable, avoiding the excessive procedural burden of the debtor, maintaining the public interest, avoiding the expansion of discretion, increasing the overall effectiveness of the litigation. As for the position and the independence of the unreal joint and several liability, the joint and several liability cannot assimilate it.For those debtee of the unreal joint and several liability, we should allow them to claim their request right by prosecution alternatively, prosecution at the same time, prosecution successively. If the debtee of the unreal joint and several liability prosecute the whole or part of the debtors, the action can be consolidated according to the ordinary common litigation. As for the internal right of compensation between these debtors of the unreal joint and several liability, we should confirm that the agent compensation is the jurisprudent foundation of the internal right of compensation. We should ensure the range, the name and the achieve type of the internal right of compensation according to the circumstances of the case.Now, there are no specific legal article of the unreal joint and several liability in the law of our country, but there are a variety of articles which can reflect the character of the unreal joint and several liability in our law. However, many disadvantages bring a lot of inconvenience to the judicial practice, for example, the lack of normative of the legislative language, the misleading meaning of some legal articles, the lack of the judicial interpretation, the lack of the general rules of the unreal joint and several liability, the lack of the operation of the existing rules. To improve the existing law in the future, we can take several measures to improve the rules of the existing law. For example, we can correct the misleading articles, publish the judicial interpretation of the corresponding articles, draw up the general rules of the unreal joint and several liability, promulgate the conduct cases of the unreal joint and several liability. In addition, in order to provide convenience for the unreal joint and several liability in the procedure of the litigation, we can take the impleader instead of the third party without independent right to claim. In this way we can both increase the overall effectiveness of the litigation and balance and strength the protection of the interest of the debtor and the debtee of the unreal joint and several liability.