Study On The Proceedings For Supplementary Liability For Tort

The supplementary liability of tort belongs to the form of several person tort liability.Compared with joint and several responsibility and share responsibility,this form of responsibility has independent value in balancing rights and obligations of the liable person and the guaranteeing the right of claim of the obligee.Substantive law gives the independent value of tort supplementary liability,which can be realized only with the supply of special judicial procedures.However,there are many disputes and research gaps on the realization procedure in judicial practice and procedure theory,which are embodied in the inconsistent choice of litigation form,the inconsistent expression of judgment documents,and the weak research on the specific development of execution procedure and recovery procedure.Based on the entity and the procedure stipulation,this article pay attention to the whole process of tort Supplementary Liability from litigation to trial,execution and recovery.Based on the theory of interpretation,this article advocates that the obligee can freely exercise his litigation enforcement right and choose to sue alone or jointly.If any responsible person is sued separately,it will constitute a single lawsuit,and if two responsible persons are sued at the same time,it will constitute an ordinary joint lawsuit.In the litigation stage,it is not necessary to protect the sequential interests of the supplementary responsible person by limiting abligee’s litigation order.Contrarily,its sequential interests should be protected in the implementation stage.In the trial stage,if a single action is constituted,it is necessary to focus on the impact of the pre action on the post action.The common facts in the two actions constitute evidence free facts,which can be directly invoked in the post action.When prosecuting two responsible persons at the same time,it is necessary to judge whether the two responsible persons bear the responsibility respectively,and there is no need to make a judgment of winning or losing together.If both responsible persons should bear the responsibility,the main text of the judgment should clarify the order of responsibility and the right of recourse of the supplementary responsible person.In the implementation stage,the principle of priority and exhaustion of implementation shall be implemented.In principle,the implementation of supplementary liability shall not be started until the implementation procedure of the main responsible person is terminated.Unless the main responsible person is missing or has no property to implement,the supplementary responsible person has the right of Defense of first execution.If the supplementary responsible person is prosecuted separately,it shall be considered that the obtained judgment is the basis for conditional execution.If the execution conditions are not met,execution shall not be started.After the supplementary responsible person makes supplementary compensation,the supplementary responsible person who is sued separately may sue separately to proform the right of recourse;Whether the supplementary responsible person jointly sued needs to exercise the right of recovery through another lawsuit needs to be judged according to the content of the judgment main text,that is,the judgment document referring to the right of recovery can be used as the basis for execution,and can directly apply to the court for execution.The judgment document without the right of recovery can not be used as the basis for execution,and should exercise the right of recovery through another lawsuit.