Research On The Judicial Application Of Supplementary Liability Undertaken By The Security Obligors

Supplementary liability for infringement is a new mode of liability bearing with Chinese characteristics,which innovates the system of liability bearing for infringement.Especially in the case of the third party involved in the security obligation,it provides a good solution for the distribution of the responsibility of the direct infringer and the security obligors.However,due to the imperfection of the law,the scope of application of the supplementary liability in the case of security obligation is still unclear,the scope of compensation is not clearly defined,the right of recourse of the supplementary liable person is still controversial,and the relevant provisions of the litigation procedure and execution are not clear.The theoretical research is also mostly limited to the definition,nature and litigation form of supplementary liability,and there is no systematic research on system,and the connection between entity and litigation is even less.The interpretation of the concept of supplementary liability,the definition of the scope of compensation,the application of the right of recourse and the application of the litigation procedure are not uniform.In the process of the compilation of tort liability in China's civil code,the establishment of supplementary liability in the case of security obligation has been in constant dispute and has been repeatedly revised.Therefore,as a new responsibility system,there are still many areas to be improved.In this regard,this paper starts from the perspective of judicial practice,through big data induction,typical case comparison and other empirical research methods to explore the judicial application dilemma of supplementary responsibility in security obligation cases in practice,and design the corresponding solution path.This paper is divided into four parts,the first part describes the security obligations and supplementary liability for infringement of the relevant theoretical overview.Based on China's current legislative provisions and theoretical research,the author expounds the source of security obligations,the meaning and form of supplementary liability for infringement and the practical significance of supplementary liability in security obligations.The second part and the third part are empirical research modules.The author searched the cases of the third party's interventional-type security obligation from 2016 to 2018,and randomly selected 140 judgments from them to observe and summarize the practical problems affecting the judicial application of supplementary liability in judicial practice through data statistics.Through the method of case comparison,this paper makes a comparative study on the contradiction of law application under the system framework of the supplementary responsibility of the current security obligors.The empirical data are related to the proportion of supplementary liability and the application of duty by share in such cases,the scope of compensation of the security obligors,the confirmation of the right of recovery,the litigation form applicable to such cases and the distribution of burden of proof.The empirical case studies mainly focus on whether the supplementary liability is applicable in security cases involving no third party,how to investigate the supplementary liability of the security obligors under the mediation agreement,and how to investigate the supplementary liability of the security obligosr after the enforcement of the civil judgment attached to the crime.The fourth part is the design of the approach to the implementation of the supplementary responsibility in the case of security obligation.In this part,the author tries to carry out from the three directions of substantive judgment,litigation procedure and execution procedure in order to improve the judicial approach to realize the supplementary responsibility of the third party security case.so as to make the system more reasonable and practical value.The direction of the entity involves the definition of the scope of application of supplementary liability,the definition of the scope of compensation and the confirmation of the right of recourse;The direction of litigation involves the definition of litigation form,the construction of litigation procedure and the perfection of burden of proof.The direction of execution involves the determination of the principle of execution,the exercise of the right of objection and the exercise of the right of recourse.