不真正连带责任之独立性研究
发布时间：2019-06-28 20:20
【摘要】：不真正连带责任,在大陆法系国家也称为不真正连带债务,用以解决司法实践中大量出现的数个侵权人基于不同事由对同一被侵权人承担全部损害赔偿责任的问题。作为民法中不可或缺的责任形态或债务形式,尽管当前各国立法中鲜有不真正连带责任的一般性条款,但因该制度所蕴含的独特法律价值和功能而为判例、学说所采纳。不真正连带责任作为实体法与程序法紧密结合的法律制度,对其进行研究源于理论与现实的实际需要。我国现行民商事法律中存在体现不真正连带责任性质的条款,其作为立法者有意选择的价值调整工具被赋予了新的特质,不同于传统意义上的不真正连带责任。目前,我国法律虽然规定了不真正连带责任适用的具体情形,但缺乏对不真正连带责任的一般性规定。同时,对其研究不够深入,学者之间争议较大,其中不乏有质疑不真正连带责任的声音出现。随着经济社会的发展,法律所调整的社会关系日益复杂多样,近年来涉及不真正连带责任的案件日益增多,已成为司法实践中的难点和热点问题。立法的不完善和理论研究的不充分给不真正连带责任的司法适用带来困扰。本文通过对不真正连带责任基本范畴的界定和基础理论的研究,旨在论证不真正连带责任作为独立责任形态的价值和意义,促进该制度的可操作化,为其司法适用提供理论支撑。本文对不真正连带责任独立性的研究主要分为如下几个部分:首先是不真正连带责任的基础理论。这一部分包括不真正连带连带责任的起源与发展、内涵及构成、法律效力等内容,目的是从不真正连带责任本体的角度对此种责任形态进行研究,并为后文的论证提供理论依据。其次是不真正连带责任的独立性基础与制度价值。该部分是文章的核心,本部分首先系统比较了不真正连带责任与其他责任形态,接着从自由价值与秩序价值、责任归责与损害救济、弱者倾斜保护与举证方便、矫正正义到分配正义等方面进行了论证,并将侵权行为形态、归责原则、侵权责任形态进行了有机地结合。再次,本文结合我国实际,从民事主体角度、民事立法角度、民事司法角度论证了我国构建不真正连带责任制度的现实意义,并对不真正连带责任的完善提出了建议。最后,不真正连带责任作为实体规范与程序规范相结合的统一整体,实体权利的实现需要程序法的支持,对此本文从诉讼形式、诉讼当事人的追加等问题论证了不真正连带责任在程序法层面的特殊性及司法适用。经过研究,本文认为,不真正连带责任并非逻辑推理的结果,而是对现实情况的归纳和总结。不真正连带责任无法被其他责任形态所涵摄,应对其独立性予以肯定。本文以综合的视角展开研究,在澄清不真正连带责任的理论争议的同时,为其司法适用提供理论依据。只有将不真正连带责任制度实体法上权利义务的规定与诉讼程序相互协调、相互配合,才能真正实现这一制度在最大程度保障和便利受害人获得救济的基础上,合理规制各方权利义务关系、公正解决纠纷的价值。此外,本文结合当前我国民事立法现状和民法法典化趋势,为今后我国民事立法完善不真正连带责任制度奠定理论基础。
[Abstract]:The non-real joint liability, also known as the non-real joint debt in the continental law system, is used to solve the problem that a large number of infringers in the judicial practice bear all the liability for damages on the same subject on the basis of different causes. As an indispensable form of responsibility or form of debt in the civil law, although there are few general provisions in the current national legislation which are rarely and jointly and severally liable, it is adopted by the doctrine of the unique legal value and function of the system. The non-true joint liability is the legal system which is closely related to the substantive law and the procedural law, and the research is derived from the actual need of the theory and the reality. The present civil and commercial law of our country has the clause that embodies the nature of the non-true joint and several liability, which is given the new characteristic as the value adjustment tool that the legislator intends to choose, which is different from the actual joint and several liability in the traditional sense. At present, while the law of our country sets out the specific situations where the application of the non-true and several liability is not true, the general provisions on the non-true and several liability are lacking. At the same time, the research is not in-depth, the dispute between the scholars is large, among which there is the sound of doubt that there is no real and several liability. With the development of the economy and society, the social relations adjusted by the law are becoming more and more complex. In recent years, the number of cases involving the non-real and several liability has become more and more complex, and has become a difficult point and a hot issue in the judicial practice. The imperfection of the legislation and the failure of the theoretical research have brought a problem to the application of the judicial application of the unreal and several liability. This paper, through the study of the definition and the basic theory of the basic category of the non-true joint liability, is to demonstrate the value and significance of the non-true and several liability as the form of the independent responsibility, to promote the operation of the system and to provide the theoretical support for its judicial application. In this paper, the research on the independence of the non-real and several liability is divided into the following parts: first, the basic theory of the non-real joint and several liability. This part includes the content of the origin and development, the connotation, the composition and the legal effect of the unreal joint and several liability, and the purpose is to study the form of this responsibility from the angle of the non-true joint and several liability, and to provide the theoretical basis for the later demonstration. The second is the independence and system value of the non-real and several liability. This part is the core of the article, the first part of this part compares the unreal and several liability and other responsibility forms, then from the free value and order value, the responsibility attribution and the damage relief, the weak slope protection and the proof of proof, the correction of justice to the distribution justice, etc. And organically combines the form of the tort, the principle of imputation and the form of the tort liability. Thirdly, in the light of the reality of our country, this paper, from the angle of the civil subject, the angle of civil legislation and the angle of the civil justice, demonstrates the practical significance of the construction of the non-real joint and several liability system in our country, and puts forward some suggestions on the perfection of the non-real joint and several liability. In the end, there is no real joint and several liability as the unity of the entity specification and the procedure specification, the realization of the entity's right needs the support of the procedural law, this article is in the form of litigation, The additional questions of the litigants prove the particularity of the non-true and several liability in the procedural law and the application of the judicial system. Through the research, this paper holds that the actual and several liability is not the result of logical reasoning, but the conclusion and conclusion of the reality. It is not true that the joint and several liability cannot be taken by other forms of responsibility, and its independence should be affirmed. In this paper, the research is carried out in a comprehensive view, and the theoretical basis for the application of the judicial application is provided at the same time of clarifying the theoretical dispute of the non-true and several liability. Only the provisions of the rights and obligations on the substantive law of the non-real joint liability system and the litigation procedure are coordinated and mutually matched, so that the rights and obligations of the parties can be reasonably regulated on the basis of the maximum guarantee and the convenience of the victim's access to the relief, A fair resolution of the value of a dispute. In addition, this paper, in combination with the current situation of civil legislation and the trend of the civil law, lays a theoretical foundation for the perfection of the system of non-real joint and several liability in our country.
【学位授予单位】：北京工商大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2507584
[Abstract]:The non-real joint liability, also known as the non-real joint debt in the continental law system, is used to solve the problem that a large number of infringers in the judicial practice bear all the liability for damages on the same subject on the basis of different causes. As an indispensable form of responsibility or form of debt in the civil law, although there are few general provisions in the current national legislation which are rarely and jointly and severally liable, it is adopted by the doctrine of the unique legal value and function of the system. The non-true joint liability is the legal system which is closely related to the substantive law and the procedural law, and the research is derived from the actual need of the theory and the reality. The present civil and commercial law of our country has the clause that embodies the nature of the non-true joint and several liability, which is given the new characteristic as the value adjustment tool that the legislator intends to choose, which is different from the actual joint and several liability in the traditional sense. At present, while the law of our country sets out the specific situations where the application of the non-true and several liability is not true, the general provisions on the non-true and several liability are lacking. At the same time, the research is not in-depth, the dispute between the scholars is large, among which there is the sound of doubt that there is no real and several liability. With the development of the economy and society, the social relations adjusted by the law are becoming more and more complex. In recent years, the number of cases involving the non-real and several liability has become more and more complex, and has become a difficult point and a hot issue in the judicial practice. The imperfection of the legislation and the failure of the theoretical research have brought a problem to the application of the judicial application of the unreal and several liability. This paper, through the study of the definition and the basic theory of the basic category of the non-true joint liability, is to demonstrate the value and significance of the non-true and several liability as the form of the independent responsibility, to promote the operation of the system and to provide the theoretical support for its judicial application. In this paper, the research on the independence of the non-real and several liability is divided into the following parts: first, the basic theory of the non-real joint and several liability. This part includes the content of the origin and development, the connotation, the composition and the legal effect of the unreal joint and several liability, and the purpose is to study the form of this responsibility from the angle of the non-true joint and several liability, and to provide the theoretical basis for the later demonstration. The second is the independence and system value of the non-real and several liability. This part is the core of the article, the first part of this part compares the unreal and several liability and other responsibility forms, then from the free value and order value, the responsibility attribution and the damage relief, the weak slope protection and the proof of proof, the correction of justice to the distribution justice, etc. And organically combines the form of the tort, the principle of imputation and the form of the tort liability. Thirdly, in the light of the reality of our country, this paper, from the angle of the civil subject, the angle of civil legislation and the angle of the civil justice, demonstrates the practical significance of the construction of the non-real joint and several liability system in our country, and puts forward some suggestions on the perfection of the non-real joint and several liability. In the end, there is no real joint and several liability as the unity of the entity specification and the procedure specification, the realization of the entity's right needs the support of the procedural law, this article is in the form of litigation, The additional questions of the litigants prove the particularity of the non-true and several liability in the procedural law and the application of the judicial system. Through the research, this paper holds that the actual and several liability is not the result of logical reasoning, but the conclusion and conclusion of the reality. It is not true that the joint and several liability cannot be taken by other forms of responsibility, and its independence should be affirmed. In this paper, the research is carried out in a comprehensive view, and the theoretical basis for the application of the judicial application is provided at the same time of clarifying the theoretical dispute of the non-true and several liability. Only the provisions of the rights and obligations on the substantive law of the non-real joint liability system and the litigation procedure are coordinated and mutually matched, so that the rights and obligations of the parties can be reasonably regulated on the basis of the maximum guarantee and the convenience of the victim's access to the relief, A fair resolution of the value of a dispute. In addition, this paper, in combination with the current situation of civil legislation and the trend of the civil law, lays a theoretical foundation for the perfection of the system of non-real joint and several liability in our country.
【学位授予单位】：北京工商大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
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