Research On The Application Of Supplementary Responsibilities In The Area Of Security Obligations

The form of supplementary liability for tort can balance the interests of all parties and provide a solution for the sharing of tort liability in the case of the third party's tort in the field of security obligations.However,the specific rules of the application of supplementary liability are not clear,which leads to effect of supplementary liability is akin to several liability.This paper intends to explore the applicable substantial and procedural rules of supplementary liability in the field of security obligation.The body of the paper is divided into three parts:The first part mainly points out the problems and its causes in the judgment of the third party's interventional violation of security obligation.A portion of judgment that sentence the safety guarantee obligator to bear a supplementary liability according to the article 37 of tort law determine the time point at which the safety guarantee obligor performs the supplementary responsibility as “within a certain period after this judgment takes effect”.Those judgments ignore the supplementary and sequential attributes of supplementary responsibility.The result of distribution of responsibility is more akin to the distribution of several liability.There are two reasons for the occurrence of these judgments: one is that the supplementary and sequential attributes of the application of supplementary liability is not recognized,which confuses the differences between supplementary liability and other kind of liabilities borne by most people;Another reason is that the application of supplementary liability is not effectively connected with the existing procedural rules.The second part starts from two aspects of theory and practice and carries out substantial analysis on the application of supplementary responsibility in the field of security obligation.In theory,there are differences between supplementary liability and other liabilities.The application of supplementary liability shall subject to statutory circumstances and conform with the order.In security obligation of supplementary liability,compensation scope is finite and uncertainty,and this paper argues that security should shall enjoy the right of recourse against the obligor.In addition,considering the reality that the third party is unable to determine or lacks the ability to compensate in the field of security,this paper makes clear the unique value of supplementary liability applicable in this field.Compared with the several liability,supplementary liability is more flexible and can play a unique role when the direct infringer cannot be identified,which is more in line with the practice of security obligation cases.Compared with joint and several liability,supplementary liability is fairer and more reasonable.In conclusion,the application of supplementary liability in the field of security obligations can balance the interests of all parties.The third part discusses the applicable procedural rules of supplementary liability in the field of security obligation.This paper holds that the security obligator has the beneficium ordinis,but it can only play a role in the execution stage.This paper constructs security obligor's beneficium ordinis based on the basic rules of the general guarantor's beneficium ordinis,and makes corresponding changes according to the legal practice in the field of security obligation,including: firstly,it emphasize that the defendant should claim his beneficium ordinis,if not,it means an implied waiver of his defense.Secondly,when we set the obstruction of the security obligor's beneficium ordinis,we should refer to the general guarantor's.In the prosecution stage,this paper holds that the claim of direct liability and the claim of supplementary liability don't constitute necessary joint litigation.However,if the plaintiff brings an action against the person directly responsible and the person obligated to provide security at the same time,the court may try the case together in accordance with the current provisions in order to improve the efficiency of the lawsuit.In the execution stage,if the supplementary liable person refuses to perform,the applicant for execution may apply to the court to compulsory execution.The executing court shall examine whether there is any circumstance in which the supplementary liable person is not allowed to claim the beneficium ordinis or ‘the directly liable person is unable to perform'.Under the current system of civil procedure in our country,“the directly liable person is unable to perform” shall be identified according to the ruling to terminate execution and the ruling to terminate this enforcement procedure.