Substantive Basis And Procedural Realization Of Joint And Several Debtor’s Right Of Recovery In The Context Of The Civil Code

As an important part of the joint and several debt system,the different understanding of its substantive basis leads to the confusion of its realization procedures in judicial practice.At present,in judicial practice,there is no unified practice on which procedure should be used by joint and several debtors to realize the right of recourse,and which procedure to apply to realize the right of recourse is not only related to the realization of the parties’ rights,but also closely related to the realization of judicial value.For a long time,this issue has not received due attention,and the promulgation of the "Civil Code" provides an opportunity to reinterpret the substantive basis and realization procedures of the joint and several debtor’s right to recover.This article is based on Article 519 of the Civil Code,from the perspective of interpretation,by clarifying that the nature of the joint and several debtor’s right of recourse is the transfer of legal creditor’s rights,further clarifying the constituent elements of the joint and several debtor’s right of recourse,the paper points out that the key to the exercise of the right of recourse by joint and several debtors is the determination of the internal share between joint and several debtors,discuss the effect of the joint and several debtor’s right of recovery,and point out the particularity of the entity basis of the unreal joint and several debts,this lays the foundation for the discussion on the realization procedure of the joint and several debtor’s right of recourse in the following paragraphs.Procedurally,it is first demonstrated that the litigation form of the joint and several debt lawsuit is an ordinary joint lawsuit.Under this premise,on the one hand,it points out the shortcomings of the enforcement model,on the other hand,it proves the rationality and feasibility of another prosecution model with the help of the subject matter of the lawsuit and res judicata,and then,based on the ordinary joint action theory,it proves the necessity of the separate prosecution mode,and finally realizes the priority of the separate prosecution mode by measuring the two judicial values of fairness and efficiency.Therefore,it is preliminarily proved that the joint and several debtors should realize the right of recourse in the mode of separate prosecution.In order to ensure the smooth realization of the joint and several debtor’s right of recovery,this paper further discusses some key issues in the joint and several debt recovery lawsuit,it clarified the effect of the judgment of the joint and several debt lawsuit on the recovery lawsuit,and discussed the litigation form of the recovery lawsuit,it also put forward the rules for determining the share of repayment,and made special procedural arrangements for the lawsuit for the recovery of unreal joint and several debts to ensure the smooth operation of the lawsuit for recovery.