On The Development Of Unreal Joint Obligation In Our Country

The unreal joint obligation refers to possess all the substantial elements of real joint and several liability,but the law does not stipulate or the parties does not explicitly stipulate the debt as joint and obligation in debt.The popular viewpoint in our country about the unreal joint concept’s foundation is that whether the same debt occurring reasons,which make no real joint with a real joint in concept exist quite a number of the intersection.The major components of the unreal joint and several liability mainly include:several debtors based on different causes have different obligations to the creditors;several debts link together because of the casual and defactocauses;the creditor has the independent right of claim for each of the debts;the debtors have the same content of payment,and regardless of the repayment of debt ratio;in most cases the debt has the final responsibility person etc.The unreal joint debt and joint debt in the cause of debt, the debtor’s subjective state, legal effect, the two generation basis etc. has the obvious difference. The unreal joint obligation can not only protect the legitimate interests of creditors, the full realization of creditor’s rights, and protect the legitimate rights and interests of the debtor, keep debtors free from the burden of joint debt. Therefore, the unreal joint obligation can balance the interests of creditors and debtors, make up for the deficiency of joint debt. The legal effect of the unreal joint obligation can be divided into internal effect and external effect, some effect is relative, valid only for specific debtor, and some effect is absolute, apply to all debtors.At present, China’s legal system has not been aim at the unreal joint obligation in legislation to make specific provisions. But in applies to the “product quality law” Article 43, the “consumer protection law” Article 40, “insurance law” Article60, Article 252 of the “maritime law”, Article 43 of the “tort liability law” and relevant judicial interpretation when, because of the concurrence of law, often occur the unreal joint obligation in doctrine theory. In view of the practice for unreal joint debt there is a certain understanding of the differences, the author suggests that China should be established as soon as the unreal joint and several liability case guidance system, strengthen the relevant judicial interpretation, when conditions are ripe to should be in form of legislation for unreal joint and several liability to be constructed.