The Unreal Joint Obligation On The Problems Existing In The Application And Its Legal Countermeasure

The study of unreal joint obligation has very important significance, it not only can avoid the case of conflict between justice and law as a whole, but also can balance the debtor and creditors and other interests between the parties. In the current laws and regulations in all countries of the current is not clear about the unreal joint obligation made specific provision, about is not the real joint debt in our country is not perfect, the relevant provisions of the exist only in some specific laws and regulations with no real joint debt characteristics, and these provisions clearly cannot completely solve the reality proceedings in the case of such debt problems. Because of substantive law on the legal blank, caused chaos in judicial application, for example, in tiying cases about is not the real joint debt, around the court have different standard, thus the result of the decision also vary wildly, influence to the unity of justice. So in the judicial activity in the real perfect regulations in our country is not the real joint debt has very important significance.In this paper, the unreal joint debt as the research object, the combination of theoretical research and judicial practice, using the literature material method, case analysis, comparative research and other research methods, the comparative analysis of the mainland and Taiwan scholars point of view, on the basis of the first on the connotation and characteristics of no real joint debt are expounded, and then through the analysis of the present legislation in our country is not the real joint debt and judicial application present situation, and combining with the experience in the judicial practice, found no real joint debt on specific problems in the legislation and judicial application, for example in the legislation has not yet on the definition, types and effectiveness make that clear, and has not yet established a perfect system; Administration problem of determining the cause of action and in the judicial application, selection of v. and merge, expression and execution of judgment document, the final responsibility exercise of the claim problem and related issues, such as additional third party in the reference point under the premise of various scholars and specialists, clearly put forward the legal Suggestions to solve these problems, in order to make no further perfection and development of the real joint debt theory, so as to promote the legislation, judicial practice and relevant reality dispute and the solution of the problem, better safeguard the lawful rights and interests of the parties and maintain the social order harmonious stability. This paper mainly consists of four parts.The first part is about the overview of the unreal joint obligation. This part through the comparative analysis of the experts and scholars on the Chinese mainland and Taiwan area about is not the real joint debt's point of view, this paper expounds the similarities and differences between them, and on this basis, summarizes the basic meaning and characteristics of the real joint debt. So the author suggested that for meaning is not the real joint debt, can define like this:by two or more debtors due to different causes, incidentally, the contents of the creditors of the same to pay the debt, and each debtor to creditor's loss to assume all the obligations of the independent, when after one of the debtors bear the compensation obligation, all of the debtor's obligations of debt can be automatically.The second part based on the analysis of our country at present is not the real joint debt, on the basis of present situation of judicial application, according to the judicial practice in China in about a specific deal not really joint and several debt disputes, clear about our country is not the real joint debt problems existing in the judicial application. Selection and consolidation issues such as the existence of v., expression and execution of judgment document problem, not the final person how can claim execution and how to add to the third person of specific issues.The third part through the analysis at present our country about is not the real joint debt of the provisions of the laws, regulations and judicial interpretations, in combination with judicial practice about is not the real joint debt applicable, on the basis of the specific issues from both for the realities of a trial in our judicial practice need, the concrete analysis to our country about is not the real joint debt for the reasons of these problems, in the imperfect legislative and judicial practice in the specific operation standard is not unified, and further discuss about it.The fourth part is applicable to our country is the unreal joint debt that exist in these problems, in combination with the current deficiencies and defects in the judicial application of the law, on the basis of the experts and scholars in the related point of view, from the aspects of legislation and judicial application clearly put forward the concrete legal Suggestions to solve these problems, such as clear in the legislation is not the real joint debt and the definition of effective, simple and not the real joint debt classification method, and establish a perfect system; Clear the cause of action in the judicial application to determine the jurisdiction of standard and the principle of selection and combine standard, establish v., clear verdict document way of expression and execution, and clear the final responsible exercise of the right of recourse against the way and establishing additional third party processing standards such as the corresponding legal countermeasure, so as to improve the study of the unreal joint debt in our country.