Research On The Unreal Joint And Several Liability

The unreal joint and several liability is a special concept from Germany law system. After one hundred years’ development, different definition theory has been formed, but there are no specific provisions on this in every country’s civil law, and they are only existed in theory. The scholars owning different theories determine the definition multiply. As a result, there is not an agreed definition. The unreal joint liability is essentially derived from Roman law, but since the German compiles the concept, it has been developed and inherited in Japan and china’s Taiwan. The scholars also generally admit its value, and apply it to the actual cases. In the traditional unreal joint liability theory, the unreal Joint and several liability differs from supplementary liability and Joint and several liability, but the relationship between them is united or distinct is also a big problem. How to define the unreal joint and several liability, there always has difficult to overcome the theory corner. It is a problem that the various definition theories are not adapted to the actual demand. In tort law system, the unreal joint and several liability is based on the theory of subjective common said of joint tort behavior. But with the common development of the association, the theory foundation gets great challenges and the subjective common said gradually declined, and the boundary with the joint and several liability become vaguer, the propriety of its existence are also questioned, And the system itself has obvious defects, there is wide doubt in the system and the design of potency, so it is difficult to carry all this objective value. Crisis appeared on the theory and practice in the unreal joint and several liability system. The unreal joint and several liability was introduced into China mainland through Taiwan, many civil law scholars studied widely, especially since the tort liability law was promulgated and implemented, this discussion has become more intense and formed two different viewpoints. Someone must the system value, thinking that our tort liability law set the system and make it perfect and stereotype; the others negative the necessity of its existence in China mainland, considering it is not in our law, the so-called relevant provisions is a kind of creditor’s rights transfer in essence, but has nothing to do with the joint. The choice between strictly limited socialist and broad socialist of joint liability legislation mode directly affect destiny of unreal joint obligation system, only in the legislative model of strictly limited socialist does it have the necessary to exist. During the process of establishing our country’s civil law, we should adopt the broad socialist model of legislation without formulating it in law.