Unreal Joint Tort Liability And The Expression Of It's Program

Since the "Tort Law" was promulgated, the academic study of unreal joint tort liability is becoming more depth, but the study of program expression needs to be further strengthened.Studying unreal joint tort liability program expression, we must first solve the problem of the existence of this form.If this form does not exist independently, then the study on program expression will be "meaningless air shock";secondly, if there is such a liability form then where its unique position;thirdly,when we solve these two important theoretical questions, we do need to study what programs expression.The main line of this paper is such a logical progression, the base of joint tort liability,independent value, combined with some cases explore the cause of action,jurisdiction,litigation form,judgment.This paper is divided into six parts:The first part studies the status of unreal joint and several tort liability.The independence status of unreal joint and several tort liability is controversial. One view is that the "Tort Law" unspecified unreal joint tort liability, another view thought that unreal joint tort liability has its normative basis.The second part of the study is about the main difference among multiple liabilities.In tort law, unreal joint and several liability is not a real joint and several liability.In theory, some scholars are skeptical about this independence, so there is the dispute about the independence of unreal joint and several liability.Secondly, unreal joint tort liability's elements need to be further expressed:firstly, the main aspect, the unreal joint tort liability for an infringement of two or more people have the capacity for civil conduct;secondly, object, object unreal joint tort liability for payment of the same acts;thirdly, the subjective aspect, each infringe has no common intention liaison;fourthly, the objective, part of the infringe exists infringement, some people do not exist infringement.Finally, unreal joint tort liability positioned in the system of majority of the responsibility should be re-clarified.The third part studies the cases on unreal joint tort liability disputes.Through a number of cases' study we can get some inspiration about the expression of unreal joint tort liability issues.To this end, the author selected 62 relevant cases on China-law-info.According to the plaintiffs, the case only suing the responsibility of intermediate is 10, accounting for 16.1%;only suing the final responsibility is 12 cases, accounting for 19.4%;The plaintiff sued while intermediate and final responsibility is 40 cases, accounting for 64.5%.We can either see the difference of judicial practice from these data, we can see the direction of unreal joint tort liability program expression.The fourth part studies the cause of action in cases and jurisdiction.The determination of action of unreal joint and several tort liability should distinguish different legal nature of the relationship,If the legal relationship between two or more is the same type, you can determine the cause of action in accordance with the same kind of legal relationship;If the legal relationship between two or more is different types, then the two or more juxtaposed against them.The determination of jurisdictional of unreal joint tort liability,should distinguish situations:first, if there are multiple violations to the plurality,the courts have jurisdiction at the same time;second, the number of different defendants also determines the different jurisdictions of the court;thirdly, if the defendant is not in violation place, the court shall have jurisdiction.The fifth part studies the suing form about unreal joint tort liability disputes.The determine of the defendant is based on the sense of the compensation autonomy, the plaintiff makes measures to select some accused proceedings, also can select all the proceedings, also can choose only one defendant in the litigation.Of course, after the Interpretation right after the filing by the judge, the creditor may change the scope of the accused, but the judge can not directly addition defendant, otherwise violating the will of creditors.The sixth part studies the express of judgment of unreal joint tort liability disputes.1. The plaintiff only sued the middle responsible person, which is the plaintiff's right, the court should respect.But the court has right to interpret whether the plaintiff addition final responsibility, and if the plaintiff added final responsible person,then according to the co-defendant process;If the plaintiff does not add, the court should be directly liable for the judgment by the middle of the responsible person, the middle responsible person should not sue to the final responsible for recovery clearly.2. Plaintiffs only prosecute the final persons, which is also the plaintiff's right, the court should respect.But the court has the right to interpret whether the plaintiff added intermediate person, if the plaintiff added the middle, according to the co-defendant process;If the plaintiff is not adding, the court should be directly liable by the final judgment of the final responsible person.3. The plaintiff sued while intermediate and final person, the court has no right to make the plaintiff must choose a bright person appealing.Starting from the maximum level to protect the victim, the court shall make a judgment: the plaintiff can choose intermediate or final responsible person claim.From the balance between the victim and the middle person,it seems to be acceptable expression: if the victim claims to the middle person, after the final performance, the middle person can recover from the final responsible person.