The Realization Of The Joint And Several Liability In Tort

As an important form of liability in the field of tort law,Joint and Several Liability of Tort is an important rule for the responsibility bearing and distribution in the field of several persons’ tort.The realization of its many value goals needs the guidance of appropriate litigation rules.The research on the system of Joint and Several Liability of Tort should be carried out within the system of majority tort liability first,in order to clarify the difference between it and other forms of majority tort liability and the specific types it includes.After defining the basic connotation of Joint and Several Liability of Tort,how can the provisions of substantive law be fully reflected and applied in the litigation procedure?This involves the determination of litigation form,which is related to the number of participants in the case,the trial procedure and the protection of the rights of the parties.It is a problem that the court must solve after accepting the case.On this issue,there is a gap between substantive law and procedural law in China,which makes it difficult to provide unified guidance for judicial practice.After analyzing the theory of litigation object and exploring the system value of joint and several liability,Ordinary Co-litigation can be applied.However,the operation of the Joint and Several Liability of Tort in Ordinary Co-litigation is not entirely appropriate.It is necessary to systematically regulate its development in Ordinary Co-litigation according to the implicature of joint and several liability litigation of tort,so as to provide guarantee for the smooth progress of joint and several liability litigation of tort.In addition,the court’s judgment that the infringer should bear joint and several liability is only the realization of the stage litigation of joint and several liability.Based on the internal effect of joint and several liability,it is also necessary to ensure the realization of the litigation of the Right of Recourse between the joint and several liability holders.Only in this way can the realization of the litigation of Joint and Several Liability of Tort be finally completed.Following this logic,this paper attempts to analyze the controversies and problems existing in the realization process of the joint and several liability and the Right of Recourse liability of Joint and Several Liability of Tort,and puts forward more systematic substantive law suggestions and scientific program design,in order to make the joint and several liability system work well in judicial practice.This paper consists of four chapters:The first chapter mainly clarifies the basic connotation of Joint and Several Liability of Tort,including clarifying the types of Joint and Several Liability of Tort in the tort liability system of "the civil code",defining the relationship between joint and several liability and unreal joint and several liability and supplementary liability,and elaborating its internal and external effects,so as to lay the foundation for the research of the following chapters.The second chapter mainly demonstrates the application of Ordinary Co-litigation in joint liability of tort.This part first investigates the problems existing in the legislation and judicial practice of joint action of joint and several liability in our country,and summarizes the logic followed by the procedural treatment of Joint and Several Liability of Tort and the dilemma of its application in judicial practice.On this basis,based on the legal identification standard of "litigation object" and the value pursuit of joint and several liability system itself,this paper demonstrates the rationality of the application of "Ordinary Co-litigation",and further points out that the application of Ordinary Co-litigation ignores the involvement of Joint and Several Liability of Tort.The third chapter mainly discusses the judicial application of Ordinary Co-litigation.That is to optimize the elements of Ordinary Co-litigation,clarify the"jurisdiction" and "judgment effect" of joint and several liability cases of tort,and with the help of "the principle of common evidence" and "the auxiliary third party system",it comprehensively constructs the rules of litigation of Joint and Several Liability of Tort under the Ordinary Co-litigation,and provides procedural guarantee for the realization of joint and several liability litigation.The fourth chapter mainly studies the internal effect of Joint and Several Liability of Tort,that is,the realization of the Right of Recourse,and it holds that the principle of separate prosecution should be adopted,and the way of execution according to the ruling should be allowed exceptionally.It also puts forward the specific rules for the realization of the Right of Recourse of Joint and Several Liability of Tort,so as to provide guidance for judicial practice.