Research On The Form Of The Joint Action Of Joint Debt

Joint debt disputes is common in complex disputes of judicial practice, no specific provision in legislation of our country has defined the form of action of joint debt. According to judicial interpretation, there are two kinds of forms, including inherent necessary joint action and similar necessary joint action. The distinction between judicial interpretation rules lacks logicality. What’s more, the theory of substantial law, provisions of judicial interpretation and legislative definition of necessary joint action cannot reach the unity of logic. The form of action of joint debt has been fully debated in countries and areas of continental law system. And the discussion forms a variety of theories, which closely link to substantial law. Based on the conflict with substantial law that exist in judicial interpretation in our country and the experience in comparative law, this paper studies the form of action of joint debt from the perspective of interaction between procedural law and substantial law.The blanket rules of the effect of the joint debt in our country are scarce, therefore it is necessary to supplement and explain the regulations in substantial law. Besides, there are many problems in legislation of joint action system in our country, so we should perfect the joint action system with reference to the theory of joint action of continental law system, so as to eliminate the obstacle of the procedural law in the study of problems.According to regulation and theory of substantial law, combined with the theory of object of action and judgment, the form of action of joint debt belong to common joint action. To avoid contradictory sentence which may affect the order of substantial law, we should add the notification system and apply participation effect and reflection effect in lawsuits happen afterwards. For common joint action, we should apply the principle of common evidence and the principle of common advocate. Problems caused by procedure out of sync can be resolved through the retrial procedure.This paper is divided into four chapters, besides introduction and conclusion.The first chapter combs and discusses domestic and foreign substantial law and the related theory concerning joint debt. Articles related to joint debt in our country and countries and regions of continental law system are all combination of centralized regulation and scattered regulations. Though there are some similarities in the articles, our country lack the regulations of the effect of joint debt, compared with that in Germany, Japan, France and Taiwan. The research of this paper involves several important theories of substantial law. One is the concept of real joint debt and unreal joint debt. In our country, unreal joint debts should belong to real joint debt. The other one is complex theory. Both real joint debt and unreal joint debt include several debts. The theories of substantial law theory help to explain and expand external effectiveness of joint debt defined in substantial law..The second chapter analyses and points out the problems of the joint action system and the form of action of joint debt defined by legislation in our country. According to the legislation in our country, our country’s joint action is divided into two kinds, including necessary joint action and common joint action. And there are some specific regulations related to the form of action of joint debt in the judicial interpretation. There are many problems in the system of joint action in our country, which hinder the research. According to the relevant provisions of judicial interpretation, form of the action of joint debt includes inherent necessary joint action and similar necessary joint action. First of all, the difference between provisions of judicial interpretation is lack of logic; Secondly, the form of inherent necessary joint action violates creditor’s right of choice and the form of necessary joint action conflicts with the complex theory.The third chapter introduces mainstream theories in countries and regions of continental law system. The introduction focuses on real joint debt. Joint action can be divided into necessary joint action and common joint action in Germany, Japan and Taiwan, with the standard of nature of object of action. And necessary joint action can be divided into inherent necessary joint action and similar necessary joint action, with the standard of necessity of joint action. The procedure of joint action in French is a combination of principle provisions and exception provision. Theories in countries and regions above can be classified into several representative views, through which we can get revelation that when considering the form of action of joint debt in our country, the substantial law should be considered and the nature of legal effect of judgment to other joint debtor should be fully discussed.The fourth chapter discusses the form of the action of joint debt in connection with the substantial law in our country and the experience in comparative law. First of all, preliminary reform should be made for joint action system in our country. Secondly, analysis should be made step by step. The form of action of joint debt cannot be inherent necessary joint action in consistent with the creditor’s right of choice. And in order to avoid the contradiction with the theory of judgment, the nature of legal effect of judgment to other joint debtor should be reflection effect. So the conclusion is common joint action. However, contradictory sentence which may affect the order of substantial law could be made if we adopt this conclusion. The new problem can be avoided through the same judge of basic facts and matters of absolute effectiveness in lawsuits. And the same judge can be done by application of participation effect, reflection effect, the principle of common evidence and the principle of common advocate. For contradictory sentence caused by interruption or suspension of litigation and appeal, we can correct it through the retrial procedure.