Comparison Of The Effectiveness Of Joint Obligation And Joint And Several Obligation

In traditional civil law countries,the divisible obligation,the joint and several obligation,and the indivisible obligation are usually stipulated in the general part of the law of obligation.For the joint obligation premised on the common relationship,they are usually stipulated in the corresponding chapters of the conjugal relations,the common inheritance relationship and the partnership.There is no unified civil code in China.The current civil law system only stipulates the obligation for part and the joint and several obligation.It is obvious that this structure is not exhaustive and slightly rough.For the joint obligation born of common relations,the theoretical and practical circles regard them as joint and several obligation,ignoring the particularity of the joint obligation.The author thought it was inappropriate.The joint obligation emphasizes "consensus action".In principle,the exercise of creditor's rights must be jointly owned by all creditors,and the joint creditors can exercise and receive them separately.A joint debtor usually has common property.When it is paid off,it should first be settled with common property.If it is insufficient,it needs to be judged according to the specific circumstances,and the joint debtor may not have the right to recover.The effect of joint and several obligation on the validity of a person's business is based on the principle of relative effectiveness,with the exception of absolute effect.The situation of the joint obligation is more complicated,with absolute effect,relative effectiveness,and effective pending or invalid matters.Although the joint obligation can sometimes be used in conjunction with the provisions,the difference between the two can not be ignored.This paper mainly compares the effectiveness of the joint obligation with the joint and several obligation to prove the difference between the two.This paper consists of seven parts.The first part leads to the problem.The second part introduces the concept of joint obligation,and analyzes the similar concepts of joint obligation and divisible obligation,indivisible obligation and joint and several obligation.The third part introduces the causes of the joint obligation.The joint obligation is of a desirable and statutory type.The agreement type is the result of party autonomy.The statutory joint obligation must be subdivided into the joint and several obligation of the husband and wife,the joint inherited obligation and the partnership obligation.Although they are the same,the basic relationship is different and the effectiveness will also have an impact.The legal provisions are one of the reasons for the occurrence of obligation.Different regulations have different interests and are also legitimate.The fourth part compares the joint obligation and joint and several obligation from the perspective of external effectiveness,mainly from three aspects:the rights of creditors,the effectiveness of creditors and the matters arising from one debtor.The fifth part compares the joint obligation with the joint and several obligation from the internal effectiveness,and the focus is on discussing the recovery right,that is,the internal responsibility sharing problem.The sixth part is the legislative proposal At the time of the compilation of the civil code,the relevant rules for the improvement of the law of obligation are beneficial to both theoretical research and practical operations.This article briefly introduces the three modes.I saw that I can refer to the model specified by Germany in the relevant chapters.The seventh part is the conclusion that the joint obligation is different from the joint and several obligation,and the joint obligation has its independent value.