A Study On The Related Issues Of The Unreal Joint Obligation

At the beginning of twenty century, Hellwig, a French scholar alleged: Aconstitutive requirement only generalize one claim. This opinion has been consideredas an important principle of claim by western scholars. Indeed, a large quantity ofmalfeasance can only result in a claim and a kind of responsibility. Under thissituation, there will be no problems of claim or responsibility competition. Howeverthe characteristics of complexity and diversity, as well as the phenomenon ofresponsibility competition caused by that challenge the principles mentioned above.In the prosecution and judgment of the case involved in the unreal jointobligation, existed concept and rules follow the theory of Choose one to retort themoment causes are competitive. That aggrieved party can only choose to prosecutetort person or default responsible persons or ask employers to undertake the employerliability is supported firmly, but that aggrieved party together with competitivecompensation obligor prosecute is not supported, not mentioning the situation thatask for compensation from other people after failure in prosecution to realize the rightof claim.The opinion of the thesis: Law is a subject with strong practice and operability,and as the development of society and law, legal theory, judicial concept includinglegal rules and its judicial interpretation need necessary amendment to get rid of thestale and bring forth the fresh. Especially in the dispute over obligation hard to solve,unilaterally emphasizing Choose one to retort the moment causes are competitive isagainst the idea of protecting fairness and justice, the purpose that laws are for people,hinders advance of legal theory and legal rules with the times, ignores reasonablejudicial requirement of people, lags the realization of fairness, stops the realization ofprocedural and substantive rights and handicaps active course of people’s court. Theinappropriate theory or rule is of no value to exist, and the realization of fair judicialand the establishment of harmonious society will be hindered within its limitation,meanwhile, the unifying of judicial effect and social effect of the case will also be ruined. Therefore from the angle of the writer, firstly, a proper, reasonable, operableand acceptable assessment and measurement of Choose one to retort the momentcauses are competitive should be done. Secondly from the angle of typical division ofunreal joint obligation, it’s necessary to do a scientific and rigorous division about theexpression type of the unreal joint obligation so as to respectively deal with differentnot really joint disputes without directive mistakes. Speaking in a detail way, theprecondition for dealing with such kind of cases is to divide the unreal jointobligation in narrow sense and general sense so as to apply relative legal regulationand judicial interpretation. What needs to be pointed out is that in practice mostdisputes belong to the unreal joint obligation in general sense. Again when it comes tothe subject of entity responsibility and scope undertaken, something needs to beconfirmed and unified that the difference between the unreal joint obligation and jointresponsibility lies in that in terms of inside effects, the unreal joint obligation hasultimately responsible person and added responsible persons. Therefore whenjudgment, the debtor infringed should be sentenced to undertake ultimatelyresponsibility, and then debtor contracted should be sentenced to undertake addedresponsibility. People undertaken added responsibility have right to ask forcompensation from the ultimately responsible person. Finally when comes to thelawsuit in the case of the unreal joint obligation, firstly, it’s should be allowed thatobliges can choose one obligor to retort; secondly, it’s permitted that aggrieved partycan prosecute tort person and contract responsible persons simultaneously, thirdly,after selective retorting taking effect, aggrieved party should be allowed to prosecuteother obligors to compensation if the sentence can’t be implemented. Use proceduralrights to guarantee the realization of substantive rights.