The Outline Of Litigation Rules Of Joint And Several Liability In Tort Law

Joint and several liability, as an important form of liability in tort law, is a majorrule dealing with responsibility bearing and allocation in tort committed by severalinfringers and also has protective effect on the remedy for the infringed. It makes theremedy go on more smoothly by increasing the numbers of the liability subjects andliability property.Once part of the parties who are held jointly liable cannot take thecompensation liability, it can transfer the risk that the infringed cannot be compensatedinto the risk that the liable parties cannot recover from each other. Meanwhile, as arelatively strict form of liability, it has certain deterrent effect on the area of joint andseveral liability. Therefore, it gets more and more attentions.The value goal of the joint and several liability needs to be fulfilled by anappropriate litigation rule. In our judicial practice, a definite provision on the litigationrule of joint and several liability is long-term absent. A common understanding is stillunformed in theory. And there are two conflicting provisions on the litigation rule inour current legal norm.The conflict leads to the chaos in judicial practice, which badlyhinders the fulfillment of the legislative goal of joint and several liability. To end thechaos, it is really necessary to analyze and clear the current conflict of provisions andto seek a unitary litigation rule which is appropriate to the joint and several liabilitywithin the current law. Thus the value goals can be realized, the wrong attitude toemphasize the benefit of procedure operators in trial practice can be altered and thejudicial practice can be unified.The current conflicting of law norms on the joint and several liability ismanifested in the relation between article5in Judicial Interpretation of PersonalInjuries and article13in Tort and Liability Law. The former interpreted the lawsuit ontort joint liability as joint action that limits the options of the infringed, while the latterregards it as an alternative lawsuit that grants the infringed options. By comparing thetwo conflicting provisions and their legislative reasons and basis, the essence of theconflict can be obtained. So is the solution, namely, facing the conflict. The relativecases shall follow article13in Tort and Liability Law, and the article5in Judicial Interpretation shall be abandoned. However, the solution still causes other problems inthe lawsuit on joint and several liability, such as, the ascertaining of the cases facts andthe exercising of the right of defenses. Although these problems do not always occur,we still need to avoid the occurrence as long as there is any possibility. In our currentlaw, the accessory intervenor system can solve the possible problems. Meanwhile, theway to add accessory intervenor is much flexible. It can prevent litigation fromdelaying and save judicial resources at the same time. Thus it not only guarantees theexercising of the options of the infringed and maintains the basic values of the joint andseveral liability, but also avoids the probable problems by adding the accessoryintervenor. By doing these,the remedy for the infringed, judicial fairness and procedureconvenience can be all obtained.