论我国连带责任制度的完善

发布时间：2019-05-20 03:10

【摘要】：民事连带责任制度相对于一般责任制度来说对权利人有更大的保护力度,同时对责任人有威慑力,在实践中发挥了积极作用。但是,我国连带责任制度并不完善,立法上和司法上还存在一些不足,本文认为有必要对连带责任制度更深入的研究。在提出问题之前首先论述了连带责任制度的基本理论,包括对连带责任的界定、连带责任的特征以及与相似概念的比较并且本文还专门论述了连带责任的基础,包括主体多数性,关联性,损害结果的同一性。其中最本质的基础为连带责任的关联性,包括主体关联、主观关联以及因果关系的关联。论述基本理论是为了更好的提出问题分析问题,本文根据连带责任最本质的基础即关联性并且结合我国法律规定的实际情况我国连带责任制度现状分类梳理,包括主体关联的连带责任、主观关联的连带责任、基于政策与价值考量的连带责任。之后,本文主要介绍了德国和法国连带责任制度的规定并且结合了英国、美国的立法和实践。并且根据对比提出了一些可借鉴的经验。最后,论述我国连带责任制度在立法及司法上的完善。首先,提出了我国连带责任制度中存在的不足。包括:连带责任制度在我国适用范围不当扩大;连带责任制度在执行程序的立法上存在空白点;连带责任制度中存在不当限制的情形以及委托代理授权不明的连带责任不合理等。本文从立法、司法两方面双管齐下,针对不足,提出完善意见解决问题:应当加强立法,限制连带责任的适用范围;完善连带责任在程序方面的立法;规范不当限制的情形以及委托代理授权不明时责任的区别分配。讨论完善连带责任制度是有着重要的法律意义和现实意义的。希望通过论述连带责任制度的完善可以起到抛砖引玉的作用,使得更多的人提出更好的解决办法。
[Abstract]:Compared with the general liability system, the civil joint and several liability system has more protection to the obligee, and at the same time has the deterrence to the responsible person, which has played an active role in practice. However, the system of joint and several liability in our country is not perfect, and there are still some shortcomings in legislation and judicature. This paper holds that it is necessary to study the system of joint and several liability more deeply. Before asking the question, this paper first discusses the basic theory of joint and several liability system, including the definition of joint and several liability, the characteristics of joint and several liability and the comparison with similar concepts, and this paper also discusses the basis of joint and several liability. Including the subject majority, relevance, damage to the identity of the result. Among them, the most essential basis is the correlation of joint and several liability, including the relationship of subject, subjective and causality. This paper discusses the basic theory in order to put forward the problem analysis better. This paper classifies and combs the present situation of joint and several liability system according to the most essential basis of joint and several liability, that is, the relevance and the actual situation stipulated by the law of our country. Including the joint and several liability of the subject association, the joint and several liability of the subjective association, the joint and several liability based on the policy and the value consideration. After that, this paper mainly introduces the provisions of German and French joint and several liability system and combines the legislation and practice of Britain and the United States. And according to the comparison, this paper puts forward some experiences that can be used for reference. Finally, it discusses the improvement of joint and several liability system in legislation and judicature in our country. First of all, this paper puts forward the shortcomings of the joint and several liability system in our country. Including: the scope of application of the joint and several liability system in our country has been improperly expanded, and there are gaps in the legislation of the implementation procedure of the joint and several liability system. There are improper restrictions in the system of joint and several liability and unreasonable joint and several liability with unknown principal-agent authorization. In view of the shortcomings, this paper puts forward some suggestions to solve the problems: we should strengthen the legislation, limit the scope of application of joint and several liability, perfect the legislation of joint and several liability in the procedural aspect, and improve the legislation of joint and several liability. Standardize the situation of improper restriction and the difference and distribution of responsibility when the principal-agent authorization is unknown. It is of great legal and practical significance to discuss and perfect the system of joint and several liability. I hope that by discussing the improvement of joint and several liability system can play a role in attracting jade, so that more people put forward better solutions.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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