Research On Involved Validity Of The Joint And Several Obligation

Scholars in China have not paid enough attention to the joint and several liability system,and the relevant provisions are scattered in other laws and judicial interpretations.Article 87 of the General Principles,of the Civil Law of the People's Republic of China(hereinafter referred to as the General Principles of the Civil Law)and Article 178 of the current General Principles of the Civil Law stipulate the causes of joint and several debts and the right to recover joint and several debts.At present,there are only judicial interpretations on the other effects of joint and several debts.Paragraph 1 of Article 5 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases Involving Compensation for Personal Injury(hereinafter referred to as the "Judicial Interpretation on Compensation for Personal Injury")provides for the relative effects of "debt relief'.Paragraph 2 of Article 17 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Limitation of Action System in the Trial of Civil Cases(hereinafter referred to as the "Provisions on Limitation of Action")provides for the absolute effects of the interruption of the Limitation of Action.There is no stipulation on other matters involved,which leads to the fact that there is no legal basis for such cases in judicial practice.With the promulgation of the Civil Code of the People's Republic of China(Draft)on December 19,2019,the validity of joint and several debts is also involved in the Draft.However,the understanding and application of the other effects of the joint and several obligation still need further discussion.Therefore,it is of great practical significance to study the other effects of joint and several debts for perfecting our civil code.The first part focuses on the nature of joint and several debts to sort out the divergences of scholars on the other effects of joint and several debts.After the promulgation of the German Civil Code,Germany has formed the legislative mode of the combination of unreal joint and several debts and joint and several debts,and different countries and regions have formed different legislative mode of joint and several debts.Secondly,it discusses several matters concerning the validity of the proposed draft of the Civil Code,and the legislature is more inclined to restrict the absolute validity of the joint and several debts.Finally,the three domestic scholars of the draft civil code expert recommendations are also analyzed.The draft of Wang Liming's proposal of Renmin University of China divides the effect of joint and several debts involving others into absolute effect and relative effect,and stipulates the main matters involving the effect of others by way of enumerating,and adopts the provision of relative exception for those not prescribed,so as to make the law better deal with the developing society.Liang Huixing of the Academy of Social Sciences adopted the "trisection method" for absolute validity,restricting relative validity and non-other validity,which mainly focused on the protection of creditors and fully embodied the protection function of joint and several debts.Xu Guodong's Green Civil Code is more of a compilation of the Civil Code,lack of a certain system and logic.The second part mainly studies the foreign legislative examples of joint and several liability.By Germany,France,Japan and China Taiwan "civil law" in the joint and several debt involved he worked for the provisions of the investigation,"the German civil code" for the regulation of absolute efficacy matters less,the French civil code,with the provisions of Roman law imposes more involved his effectiveness,through the contrast found that the main reason is that legislation considerations are the factors of the debtor or creditor.The revised Japanese civil code adopts the legislative mode of the principle of relative validity and prescribes the matters related to other validity by enumerating.The"civil law" in Taiwan is more borrowed from the "Japanese civil code" before the revision.The third part mainly analyzes the factors affecting the other effect of joint and several debts and analyzes the other effect of typical joint and several debts.Factors that affect the joint and several debt involved he played is multiple,single factor and can't decide matters what validity,in his contract of joint and several debt during the system design should focus on the following elements:first of all,is the nature of the joint and several debt,joint debt is the debt of single or plural affect joint debt of the external effect of it,secondly,the nature of the items involved itself to locate and balance of interests between the parties as a result of the understanding of the factors such as different.For example,there is a dispute between "unilateral behavior" and "contract" in debt relief.The countries adopting the unilateral behavior will stipulate the debt relief as the absolute effect of limitation,while the countries adopting the contract will stipulate the relative effect.Moreover,the guarantee function and private right protection function of the joint and several debt system should be investigated.Secondly,this paper makes a specific analysis on the issues of debt relief,confusion,set-off and prescription effect,and the exemption is divided into the exemption of all the debts of joint and several debtors and the exemption of some debtors.The relative effectiveness of the completion of the limitation of action is more reasonable.On the one hand,it can prevent the creditors from abusing the litigation,on the other hand,it can save the judicial resources and enhance the guarantee function of the creditor's right.Finally,other validity matters such as liquidation and validity matters having the same legal effect as liquidation are also briefly discussed.The fourth part,combined with Article 520 of the Civil Code(Draft),fully demonstrates the understanding and application of the specific provisions of the Civil Code on the basis of the foregoing discussion,analyzes its advantages and defects,and puts forward a perfect feasibility bill.On the one hand,the first half paragraph of the first paragraph of the first article of the law stipulates that the performance,set-off and escrow of some joint and several debtors have the absolute effect of restricting other debtors within the corresponding scope,which is open to discussion.The absolute effect of the provisions on performance and escrow can simplify the legal relationship and avoid circular claims.The second half of the first paragraph stipulates the right of recourse of the joint and several debtors,which fully protects the interests of the joint and several debtors.The second paragraph of Article ? of the Law stipulates that the obligee's exemption from the obligor's obligations shall have restrictive absolute effect,and the third paragraph of the Law provides for the restrictive absolute effect of confusion in a single legal provision,which not only simplifies the legal relationship and avoids circular claims,but also protects the interests of both parties.The fourth paragraph of Article ?makes a concrete analysis of the absolute effect of the delay of collection.On the other hand,it puts forward a feasible plan for the problems existing in the law,and adds the provisions on the discontinuance of limitation of action and on the determination of judgment.