A Study On Civil Supplementary Liability

Civil supplementary liability refers to a supplementary liability when the primary liable person is unable or not capable of bearing the liabilities, the rule of law would arrange the supplementary liable person to bear partial responsibilities to remedy the litigant, which is a division of civil liability and enjoys an independent status in the civil liability system. In terms of the two major functions of victim remedy and responsibility sharing, the civil supplementary liability is distinctive from other liability forms and its functional peculiarity lays the foundation for its independent role.Like a substitute in a football match, civil supplementary liability's utmost feature and duty is to be the “substitute” for the primary liable person. But such substitutions shall be built on the premises that the primary liable person is unable or incapable of providing the remedies. If the primary liable person has sufficient remedy capacity, then the substitute doesn't need to be summoned. The recovery right is hence derived from such a civil supplementary liability.From the perspective of the right to claim of the litigant, the sequence of civil supplementary liabilities prevails when the litigant files claims to the primary liable person and the supplementary liable person. The claims shall be first made to the primary liable person then the supplementary liable person. From the point of liability bearing, there is an order in the bearing and distribution of liabilities in civil supplementary liabilities, which is the sequence of supplementary liabilities. If the litigant ignores this feature when executing the right to claim and directly asks for recovery from the supplementary liable person rather than the primary liable person,the supplementary liable person is entitled to contradict the litigant.The proportion of the liabilities of the supplementary liable person depends on two factors: the degree of mistake of the supplementary liable person and the causative potency of his behavior. In China, the causative potency is judged based on the Adequate Causation theory. So when interpreting the “corresponding liability” in the supplementary liability, both the degree of mistake and the causative potency shall be considered.Civil supplementary liability refers to partial liability. Supplementarity means to supplement the insufficiency. The prerequisite of the supplementary liable person to bear supplementary liability is the primary liable person is not capable of bearing thewhole liabilities for damages. For the convenience in actual execution, the judge shall specify in the verdict that only on the condition when the primary liable person fails to provide effective remedies to the victim in the case of property enforcement, then the supplementary liable person should bear the supplementary liability.If a litigant prosecutes both the primary and supplementary liable persons, the litigation model is neither a necessary co-litigation, nor a preparatory co-litigation, but an “ordinary co-litigation”.In juridical practice, the percentage of supplementary liable person being the only defendant is far higher than that of the primary liable person, which even reached an unreasonable state. This shows a majority of primary liable persons who incurred direct damages didn't bear any legal liabilities. The law shall motivate the litigant to prosecute the primary liable person who is responsible for major damages.