| This paper revolves around the exercise of the recourse right by the safety-guard duty obligor.The main part has two aspects: the recourse right in substantive law as well as in procedural law.Based on the theoretical analysis,the recourse right is justified for the legal principle of unjust enrichment.In its application,after the safety-guard duty obligor with gross negligence has paid all the damages that the direct tortfeasor is unable to pay,he has the right to claim the part beyond his share of liability from the direct tortfeasor.The determination of the scope of recourse is based on the balance of interests and comparative legal study.The safety-guard duty obligor with ordinary negligence only bears supplementary liability for the part within the scope of his fault,and has the right to recover all of it.The supplementary liability bearer not only has the right of recourse,but is also legally assigned the creditor’s right of the infringed to the direct infringer,which reinforces the right of recourse.As the current legislation lacks provisions on the exercise of the right of recourse,the procedural part discusses the court procedures from the lawsuit filed by the infringed to the recourse right litigation from three aspects: the infringed suing the direct tortfeasor first,suing the safety-guard duty obligor and the direct infringer at the same time,and suing the safety-guard duty obligor first.The lawsuits filed to the safety-guard duty obligor and the direct infringer constitute a similar necessary joint action.Compared with limiting the order of lawsuit,it is more reasonable to realize the supplementation in the enforcement.Thus,the infringed has the procedural right to sue the safety-guard duty obligor alone,and the court can add the direct infringer as the third party without independent request due to the need of fact finding.After the safety-guard duty obligor assumes the supplementary liability,he should sue the direct infringer when exercising the right of recourse.In cases that both the safety-guard duty obligor and the direct infringers are sued and the safety-guard duty obligor files a cross lawsuit,the court can directly judge the right of recourse by the supplementary liability bearer in the main text of the judgment. |
