Study On The Mechanism For The Realization Of The Tort Supplementary Liability Procedure

As a kind of civil joint liability,tort supplementary liability is an important part of China’s tort legal liability system,which provides a proper tort liability form for the breach of safety and security obligations under the third party tort situation and has a unique institutional value.Supplementary tort liability involves the tort legal relationship between the right holder,the directly liable person and the supplementary liable person.Compared with other joint liability,its speciality lies in the subordination of liability determination and the supplementary nature of liability performance,which is also the key factor affecting the realization of supplementary tort liability procedure.Therefore,it is necessary to determine the supplementary tort liability in the judgment and to implement the supplementary tort liability determined by the effective legal documents through specific litigation and execution procedures,i.e.,to guarantee the dynamic realization of the supplementary tort liability through the mechanism of the realization of the supplementary tort liability procedure.The current legal system does not provide appropriate procedural rules for the independent type of joint liability,and the judicial application of supplementary tort liability faces the realistic obstacle of lack of procedural rules.Through the study and analysis of the judicial status of supplementary tort liability in China,it is found that supplementary tort liability in the process of procedural realization mainly faces the following problems: firstly,at the stage of litigation procedure,the judicial practice presents liberalization in the choice of litigation form of supplementary tort liability,mainly because of the lack of rules of litigation procedure and the influence of ignoring the subordinate procedural connotation of supplementary tort liability;secondly,at the stage of execution procedure,the judicial practice mainly has the problems of arbitrariness in the procedure of judging the conditions for the execution of supplementary liability and the lack of uniform standards for the achievement of conditions.The main problems are the arbitrariness of the judgment procedure and the lack of uniform standards for the achievement of the conditions of supplementary liability,which are mainly due to the lack of rules for the judgment of the conditions of enforcement,the influence of the free exercise of the right of first-action defense,and the conflict between the interests of the creditors and the interests of the subordinate performance of the supplementary liability.The procedural paths to solve the above problems are: first,return to the decisive factor of litigation form selection-the identification of the subject matter of litigation,and take the theory of subject matter of litigation under the perspective of civil master and subordinate theory as the theoretical basis of tort supplementary liability litigation form selection.When the right holder sues the directly liable person alone,the subject matter of the lawsuit is identified as a single subject matter of the lawsuit,at this time,the litigation form of supplementary tort liability is simple litigation form;when the right holder sues the supplementary liable person alone or jointly sues the directly liable person and the supplementary liable person,the subject matter of the lawsuit is identified as a single indivisible subject matter of the lawsuit and the same indivisible subject matter of the lawsuit,at this time,the litigation form of supplementary tort liability is necessary Common lawsuit.Secondly,the procedural rules of "ex officio review + debtor’s objection" are adopted as the review and remedy path for the fulfillment of the conditions for the execution of the supplementary tort liability.Specifically,it is clear that the court will review ex officio whether the conditions for the enforcement of supplementary liability are fulfilled,and rule on the rejection of the enforcement application or the enforcement of the case according to the results of the review.If the applicant is not satisfied with the ruling of rejection,he/she may file a separate lawsuit to confirm whether the conditions for the execution of supplementary liability are fulfilled;if the person with supplementary liability is not satisfied with the ruling of execution of the case,he/she may file a lawsuit to confirm whether the conditions for the execution of supplementary liability are fulfilled.Third,drawing on the exercise and extinction rules of the right of first plea,combined with the useful experience of implementation practice,improve the general and exceptional criteria for the achievement of the conditions for the implementation of supplementary liability.