Research On Apllication Of The Joint And Several Liability In Civil Litigation

The joint and several liability is an ancient theory in civil substantive law, which is aimed at the adequate protection of the creditors’interest, through giving creditors discretional right of claim. It also fairly balance debtors’responsibility through constructing internal subrogation system. In accordance with provisions on the joint and several liability in civil substantive law, the debtors have a special relationship involving relevance and independence.The construction of litigation procedure directly influence the realization of creditors’rights and the protection of debtors’obligations,. There are different viewpoints concerning the selection of litigation form of the joint and several liability in current academic field. We should synthetically consider all kind of factors such as subject matter and debt efficacy, distinguish different types of joint and several liability, and select the similar necessary joint action and the common joint action respectively.Different forms of litigation have large divergence in construction of procedure and efficacy of judgement, the similar necessary joint action emphasize the relevance between the debtors, one debtor’s behavior have binding on others where its behavior is beneficial to all debtors, and court will make syncretic certainty judgement through the expansion of res judicata. Common joint action emphasize the independence of the debtors, the debtors may act respectively and acquire different judgement, which not affect others. No matter what kind of joint action form is used, the relevance and independence between debtors should be balanced in constructing litigation proceedings and making litigation adjudication, the similar necessary joint action shall not ignore the independence between debtors regarding capacity to be a party,while the common joint action shall emphasize the syncretic definiteness of each debtor in common matters, avoid the contradictory judge through the principle of common evidence and the reflect effect.This paper focus on the application of the joint and several liability in civil litigation, based on the research achievements of scholars at home and abroad, try to combine the civil substantive law and the civil procedure law, analyse the application of the joint and several liability in civil litigation in detail, and synthetically discuss the whole civil litigation process of the joint and several liability, through using subject matter theory, the principle of common evidence, and res judicata theory.In addition to the introduction and conclusion, this paper consists of four chapters:The first chapter——The concept and classification of the joint and several liability.This chapter,which is the foundation of this thesis, mainly introduce the concept, internal and external legal relationship, classification of the joint and several liability from the perspective of civil substantive law.The second chapter——litigation form of the joint and several liability in civil litigation. This chapter mainly introduce various theory regarding litigation form of the joint and several liability, synthetically consider all kind of factors such as subject matter and debt efficacy, distinguish different types of joint and several liability, and select the similar necessary joint action and the common joint action respectively.The third chapter——the parties and proof of the joint and several liability in civil litigation. This chapter discuss the joint and several liability litigation procedure application from the perspective of proof and parties, based on the different characteristic of the similar necessary joint action and the common joint action.The fourth chapter——the judgement and enforcement of the joint and several liability in civil litigation. This chapter discuss the judgement, mediation, enforcement of the joint and several liability litigation and balance the relevance and independence of debtors through distinguishing the types of the joint and several liability litigation.