Research On The Legal System Of Joint And Severa:Obligations

Joint and several obligation is a kind of obligation with several creditors or several debtors, which has been of great importance ever since the Rome Law, and still remains a fundamental yet complicated issue in the domain of law of obligation. It is now holding an even more significant place in the civil and commercial legal system, due to the development of economic and social life, the increased frequency of commercial transactions in the modern world, and especially, the coming into being of risk society. Despite the differences in the actual stipulations, joint and several obligation is provided in private laws of countries and regions all over the world. In China, the provisions concerning joint and several obligation are: Article87of the General Principles of Civil Law, Article90of the Contract Law of People's Republic of China, and Article102of the Real Right Law of the People's Republic of China. Also, Article13and14of the newly implemented Tort Law of the People's Republic of China shall be seen as general stipulations about internal and external validities of joint and several obligation. Apart from the above mentioned, there are numerous provisions concerning this issue in other civil and commercial laws, administrative regulations and judicial interpretations, in the name of joint and several obligation or joint and several liability. Although the provisions are many, the concept (legal definition) of joint and several obligation is still ambiguous. Currently there are very few published works expounding joint and several obligation in mainland China, the majority being paraphrases of works of German or Taiwan scholars. On one hand, many academic issues have been perplexing both theoretical and practical scholars, to name a few, the concept of joint and several obligation, the conditions of establishment, the validity of the creditor's action to one joint debtor on the others, and the obtainment of contribution between joint debtors. And the heated discussion about Unechte Gesamtschulden among scholars of civil and commercial law in recent years is calling for a clear demarcation of the two concepts. On the other, along with the lack of systematicness and exercisability in the substantial law, there is also a lack of pertinency and practicality in the fulfillment of joint and several obligation and the according civil procedure. Now that China is in its codification of the Civil Code, in which the stipulation of joint and several obligation concerns not only the general provisions of the civil code (e.g. partnership and agency), but also the general and specific provisions of the law of obligations, and the joinder of joint and several obligation also needs clarification and perfection, an in-depth study of joint and several obligation is of great significance to both legislation and judicial practice.This dissertation on joint and several obligation is based on current studies, with emphasis laid on some specific issues. Taking into consideration the codification of the Civil Code, and the relationship between the general and specific provisions of the Law of Obligations and the general principles of the Civil Code, the author thinks it necessary that the general provisions of the Law of Obligations provide the following issues, thereby offering a legal foundation for the stipulations in the specific provisions:the legal definition of joint and several obligation, the conditions of establishment, the internal and external validities, the validity of the creditor's action to one joint debtor on the others, the obtainment of contribution between joint debtors, and the expansion of right of claim.This dissertation begins with the introduction as other dissertations. The introduction summarizes the research's background and significance, the research's current situation home and abroad, in which the legislation evolution of joint and several obligation and inheritance in various countries is described briefly. Based on the laboratorial work, the dissertation's make it clearly that the joint and several liability is one kind of the joint and several obligation, so as to confine discourse and exposition. The introduction further comprises the basic idea and primary coverage, the research method and the main points and conceivable innovation as well.This dissertation consists of four parts in addition to the introduction:The first part is the Analysis of the legal basis and value of joint and several obligation. This part lays the theoretical basis of joint and several obligation. It first analyses the functions of joint and several obligation with the idea of justice as the core value, pointing out how these functions, such as self-liability, equitable liability and the indemnification of damages, have reflected the idea of justice. Then, it focuses on the value of justice in the rights of private law and the protection of such rights, probing into the protection provided for both the creditor and the debtor, particularly with the development of joint and several obligation towards the commercial field in modern market-oriented economy. Furthermore, it applies economic methods to the analysis of the legal issue of joint and several obligation, discussing the realization of equality and efficiency with this regard. Economic factors are to be taken into consideration to both the substantial and procedure law. The same is true of the interests of both the creditor and the debtors.The second part is Analysis of the classification of joint and several obligation.This part follows the traditional classification of joint and several obligation in civil law, dividing it into legal obligation and voluntary obligation. In the scope of legal obligation, classification is made by analogy to degree of kinship system. According to the closeness between debtors, the existing provisions about joint and several obligation in China are classified into four categories, namely, joint and several obligation that is caused by the same aim of the group, by the same contract, by guaranteed obligation, and by tort. Since joint and several obligation caused by tort is the most common of all legal obligations of this type, it is further classified with reference to relevant provisions in the existing Tort Law. As to Unechte Gesamtschulden, this part regards it as an exception to the legal system of joint and several obligation.The third part is Analysis of the legal validity of joint and several obligation.The external validity consists of right of creditor, and the validity of the creditor's action to one joint debtor on the others, while the internal validity deals with the pursuit of contribution within debtors, including the assignment, subrogation and expansion of right of claim. As there is virtually no stipulation on the internal and external validities of joint and several obligation in the existing law in China, suggestions are offered in this part with reference to the several proposal drafts of the Civil Code.The forth part is Analysis of the joinder of joint and several obligation.This part is based on the relevant provisions in the Civil Procedure Code, integrated with the academic study of civil procedure law. It first contends that adversarial system shall be adopted with due restrictions in dealing with the relationship between commanding power and discretion of the judge and the adversary system. Then, with a detailed study of practices of joinder of joint and several obligation in both the civil law and common law system, combined with results from current researches, this part puts forward that there shall be a differentiation in the mode of joinder of joint and several obligation, in accordance to the nature of joint and several obligation of each case. Finally, it suggests that debtor's recourse and contribution should be settled preferably in the same lawsuit on the principle of suit economy.