Joint And Several Civil Liability System

Civil institution of joint responsibility , as a special responsibility institution , is of a prime significance as to protect the civil rights much more thoroughly. The various civil codes of the civil law countries have dealt with it systematically and detailedly. However, in China, because of the innate defect on the civil legislation as well as the shortcoming of the culture of the civil law, regulations concerning civil joint responsibility are quite random and in disorder , though it is included in most civil and commercial statutes . In addition, there are gross misconception and serious abuse in the field of theory and practice. In view of this, the author believes that it is of great necessity to carry out a systematic and thorough study on the institution ,so as to push forward the research of the legal science and the juridical practice in our China.The first part begins with the relationship between the obligation and the responsibility. On basis of their distinction, the author concludes that obligation is debtor's duty to perform or not to perform certain act according to promise or law. Therefore, it is a specified duty, i.e. in the field of creditor's rights of the civil law. Failure to fulfill the obligation leads to the responsibility. As to responsibility, there is a detailed analysis on its essence. After the comparison and contrast of the different theories on it, the author concludes that responsibility is to provide punishment for the obligation breaker and remedy for the damaged. It is a medium between the civil rights and the state public rights. The author's view is abruptly different from the former ones, which hold that responsibility is a guarantee for the fulfillment of the duty or that responsibility is the legal result of the failure to fulfill the obligation. The key point of the author's view is that responsibility is merely to provide a certain possibility for the intervention of the public rights into the civil rights, but will not definitely lead to public rights. The other parts discuss about the consistence and disjoint of the obligation and the responsibility.The second part deals with the joint obligation and the joint responsibility. Firstly,the author reviews the history of the joint responsibility and introduces the relevant foreign legislations. Secondly, the author clearly distinguishes the joint obligation and the joint responsibility, especially analyses the value and the characteristics of the joint responsibility. The author holds that its value lies in to make the creditor's rights be sufficiently and timely realized, and as to its characteristics, it is a kind of together and related responsibility. To realize its value, according to its characteristics, some guarantees are proposed as follow: the number of people and property, the risk and the litigation. In addition, the author reviews the relevant contend and put forward his own opinion.The third part is on the cause of the joint responsibility, which is the core of the thesis. As to this, the author classified it to two categories, they are the cause of breaking promise and the cause of legal provision. The former specifically covers joint obligation, impartible obligation, concurrent obligation and joint responsibility guarantee etc; the latter mainly refers to together tortious act and together jeopardizing act. Here, the author also discusses in view of the practice to clarify the issue of the application of law. The reason why the problem at present is discussed at length is that to the joint responsibility, it is quite doubtful as to when and in what case it should be in play, to which, the civil codes of the civil law countries seldom refer as well.The fourth part is on the improvement of China's civil institution of joint responsibility. In the first place, the author sorts out and analyses the existing provisions in China's civil statutes, such as General Rule of the Civil Law, Corporation Law, Law on Guarantee, and Law on Partnership. Secondly, the author ponders some issues about th...