A Research On The Unreal Joint Obligation Action Form

With the continuous theoretical reform of unreal joint obligation debt entities and their procedures,the litigation forms of unreal joint obligation have been emphasized and have gradually become the focus of many scholars.However,this issue is in an awkward dilemma: judicial practices are urgently needed but there are no systematically sophisticated researches on it.The purpose of this paper is to study the litigation forms unreal joint obligation.Based on the clearly theoretical elaboration of unreal joint obligation debt entities and their procedures,the paper is intended to use the theory of the subject of litigation and the common litigation system to make systematic researches on litigation forms of unreal joint liabilities in order to achieve coordination in the field of civil entity field and procedural field.This paper is divided into four chapters.The introduction part briefly introduces the status,origination and significance of this paper.The first chapter is the theoretical foundation of the litigation forms of unreal joint obligation.The litigation forms of unreal joint obligation is a cross question involving the substantive law and the procedural law.Therefore the theoretical basis of the unreal joint debt litigation should be clarified in order to solve this problem.This chapter introduces the substantive law mechanism of unreal joint obligation,which involves connotation,effectiveness and value,and points out that this kind of obligation whose internal relations are delicate and complex is concerned with independence and implication.In addition,the paper makes a typed analysis of the common litigation from the perspective of independence and implication,which lays emphasis on comparing the similarities and differences of the specific litigation rules in order to lay the theoretical foundation for the final determination of the litigation forms of unreal joint liabilities.The second chapter is concerned with the dilemma of unreal joint liability litigation in china.In this chapter,a real case is used to introduce an urgent problem concerning the unreal joint liability litigation.Meanwhile,it points out that the key to solving the difficult problem of unreal joint liability litigation lies in the determination of litigation forms in the unreal joint liability by investigating the current status anddifficulties of unreal joint liability litigation.The third chapter is concerned with the litigation forms of unreal joint liability.In this chapter,the old entity law is used as the basis for identifying the subject of litigation of unreal joint liability and it is pointed out that the subject of litigation of unreal joint liabilities is the subject of litigation with independence and implication.In addition,it can be considered as a whole subject of litigation under special circumstances.Secondly,according to the theory of entity in first chapter,the independent litigation form of unreal joint liability will be defined and relevant questions will be expounded.At the end,the comparison of the independence and implication of common litigation in the first chapter will be mentioned.The compatibility and repellency between the different types of joint litigation and the unreal joint liability litigation will also be compared and analyzed.Finally,the specific application type of the joint litigation is concluded,which means the joint litigation of unreal joint liabilities should be treated from two aspects: 1.a common action simultaneously initiated by a creditor or after a single lawsuit and a court hearing should be a common joint action;2.A joint litigation initiated by some or all debtors as a defendant is a quasi-joint litigation.The fourth chapter is concerned with the proposals for improving the litigation forms of unreal joint liability in china.In order to apply the litigation forms of unreal joint liability to the judicature,based on the existing law,this chapter puts forward the legislative proposals on the existing common litigation system and uses four articles to complete the common litigation system.Meanwhile,It is suggested that the problems of unreal joint liability should be solved in practices through the guidance case of the Supreme People's Court.