The Litigation Realization Of The Right Of Recourse For Unreal Joint And Several Liability Under The Background Of The Implementation Of The Civil Code

The right of recourse promotes the development of unreal joint and several liability,and it can also become the standard of unreal joint and several liability,which has important theoretical value.However,even the recourse rules under the independent legislative mode can not accurately define the connotation and extension of the right of recourse for unreal joint and several liability and can not adapt to the complex trial practice.In the trial practice,there are many typical claims for the recourse of unreal joint and several liability and "partial" claims for the recourse of false joint and several liability,and different types of cases correspond to different proceedings.The premise of the realization of the right of recourse action is that the intermediate liable person takes responsibility in the action of unreal joint and several liability(pre-action),so the pre-action procedure should be determined first.The pre-action should be an ordinary joint action,and the right of recourse should be included in the main text of the pre-action judgment,but this does not mean that the recourse action(post-litigation)is an enforcement procedure.When the pre-action is a joint action,the main text of the judgment should judge the responsibility of the person responsible separately,in order to distinguish the sequence of execution.In the execution procedure,if the pre-action is a joint action,the property of the liable person should be executed in an orderly manner,and the property of the final liable person should be executed first in the typical joint and several liability action.In the action of partial unreal joint and several liability,it should be executed according to shares first.If the intermediate liable person bears the responsibility in the pre-action,he has the right to file the recourse action.The research on the recourse action from the perspective of the pre-and-post action is the core of the realization of the recourse right action.Different litigation forms of pre-action will have different judgment effects on post-action,including judgment effect,pre-determination effect and participation effect.