On The Unreal Joint Liability In Tort Law

What the unreal joint liability in civil law reflects is, though there are multiple debtors owe the obligation of damages to the same creditor, some of the debtors actually do not bear the ultimate liability. This character of unreal joint liability contains a more important principle of fairness and justice in liability allotment in the field of tort law. The unreal joint liability occurs when it is necessary to release one from any final liability and to hold the other to account. Thus, unreal joint liability goes much further than joint and several liability and shared liability do with regard to liability allotment. The emergence of unreal joint liability is rooted in the demand of real life, for many cases which can establish unreal joint liability may set up joint and several liability or shared liability on the other hand.Therefore, confronted with the numerous and complicated views of foreign and domestic scholars about the unreal joint liability concept, as well as the practical circle’s disputes of how to settle the increasing number of cases related to unreal joint liability, this paper is aimed at solving the problem how to define the unreal joint liability in tort law and how to determine the key component of it, furthermore, is to figure out the right way of liability allotment, and to provide a reference to the litigation mode of related cases, as well as the means of expression in judgment documents.In the special context of tort law, the unreal joint liability shows its unique status: not only when in the multiple tortfeasors of “multiple causes and one result” without joint fault, a tortfeasor’s intention exempts the other tortfeasor’s negligence; or a tortfeasor’s fault exempts the other tortfeasor’s non-fault as to the final liability of damages, but also when it protects the interests of the injured by providing multiple alternative persons who are responsible for the damages, without neglecting the basic principle of liability for fault, by ridding the person whose fault has not reached the required degree of taking real responsibility.In the context of tort law, those attributes of “resulting from many different kinds of legal relations and foundations of right to claim” are reduced to one kind of relation, i.e. a relation of compensation for damages; it occurs in the multiple tortfeasors of “multiple causes and one result” without joint fault. What’s more, the different purposes emphasized in the first place are now transferred to be the compensation for the identical victim and the identical damages. At this point, the definition of the unreal joint liability in tort law must lie in the point that there is a person who should take the end liability and that the person who has compensated in advance has the right of full recovery. This hierarchy of liability is based on the distinct rank of multiple tortfeasors’ faults.Following the ideas above, we can draw out the rough situations in which it does or does not establish the unreal joint liability, according to the different fault structure between tortfeasors. After the establishing of unreal joint liability, it’s time to discuss how to process the prosecution, the trial and the judgment. It’s of great significance to the normative application of unreal joint liability in judicial practice.In order to demonstrate the particularity of unreal joint liability in tort law, this paper would expound in three parts, including the conception of unreal joint liability in tort law, the unreal joint liability under two kinds of situations, and finally, the judicial processing of unreal joint liability cases.The first part: the conception of unreal joint liability in tort law. The main contents include the various theories of unreal joint liability and its definition, as well as its constitution in view of tort law.There are several theories explaining the unreal joint liability in Germany, and each has its own merits. However, in the special context of tort law, the theory which indicates the hierarchy existing in all tortfeasors seems the most appropriate. Hereon, the so-called unreal joint liability in tort law is the mode of multiple liabilities which happens when multiple tortfeasors all should take partial or entire responsibility for the same injury, and the injured shall to claim one or several to compensate for the partial or entire damages in the range of total, and the person who compensated in advance can exercise the right of full recovery to the final responsible one. This hierarchy in definition is also reflected in the components of unreal joint liability: on one hand, all persons responsible are due to compensate for the victim’s same damage, even though the individual amount of due compensation may not be completely equal; on the other hand, there’s an “all or nothing” relation between the liability entities, some are ought to take the end responsibility, some are totally not. The right to claim of full recovery is resulted from the fault structure of “intention v. negligence” or “fault v. non-fault”, applying Article 26 and Article 27 of Tort Law of PRC analogically.The second part: the unreal joint liability under two kinds of situations. It discussed that, with regard to the fault or non-fault of tortfeasors, whether some specific types of liabilities proscribed in Tort Law of PRC constitute unreal joint liability or not.Concerning the complementary liability, such as the safe guarantee obligor’s “corresponding liability of damages”, the order of the liability entities’ performance has no influence on the ultimate share between them. Hence, the so-called “corresponding liability of damages” is either unreal joint liability, or joint and several liability, even shared liability, up to the fault structure between the safe guarantee obligor and the third party. The unreal joint liability only exists in “the third party’s intention-the safe guarantee obligor’s negligence” structure. Similarly, in the case of the tortfeasor bearing the strict liability of damages without actual fault, and there existing someone else who was actually in fault, the unreal joint liability could also be set up. This kind of situation includes the responsibility of the non-fault employer when the employee causes harm to others or when someone else causes the employee’s personal injuries, the liabilities of the builder and the unit in charge of construction, when the collapsing of buildings was resulted by other persons, and so on.The third part: the judicial processing of unreal joint liability cases. This part begins with the court’s litigation mode in unreal joint liability cases. And then, it analyzes the actual factor taken into the court’s consideration when deciding the ultimate liability, and the expression of the court’s judgment, too.From the introduction of this paper, the unreal joint liability in tort law is faced with vigorous divergence between substantial law and procedural law. The former acknowledges that the victim has the right to choose one or several to sue separately or jointly, and that the victim, who has not been actually compensated by effective judgment against one tortfeasor, can file another suit against the other tortfeasor. In contrast, the latter insists that the litigation be an “either A or B” mode, or a necessary joint action otherwise. Therewith, this paper would prefer the joinder of causes of action mechanism, since it may combine the advantages of both substantial law’s points and procedural law’s. The merger system of claims includes not only the common joint action, but lawsuit of the third party. Through one copy of judgment which identifies both the external compensation relations and internal reimbursement relations between all the parties, it really helps to avoid the possible unjust enrichment of the victim. Moreover, if the victim sues no other than the ultimately responsible person, even though he/she has the right to file another action against the other tortfeasor when he/she wasn’t fully compensated in the former action, the court can only support the remainder of damages according to the verdict of termination of execution, adjudication of bankruptcy, judicial declaration of disappearance or death which are produced by the victim. All above is made to against the possible unjust enrichment.To sum up, this paper applies the rule of contributory fault to explain the unreal joint liability, making a comparison between foreign and domestic theories about unreal joint liability via the method of comparative analysis to clarify how to explain the unreal joint liability in the special context of tort law; in the meanwhile, collecting some of the cases to explore how to apply the principle and rules of unreal joint liability to judicial practice via the way of empirical analysis.