连带债务在民事诉讼中的适用研究

发布时间：2018-04-26 06:44

本文选题：连带债务 + 类型化　；参考：《中国政法大学》2014年硕士论文

【摘要】：连带债务是民事实体法中的古老制度,它立足于对债权人的充分保护,赋予债权人以“运用自如”的请求权,同时又通过内部求偿权的设置,实现债务人责任的公平负担。实体法中关于连带债务的独特规定,尤其是连带债务人之间既相互牵连又各自独立的关系,如何能够在诉讼程序中得到充分地体现和运用,直接影响到权利人权利的实现及义务人权益的保障。当前学界对连带债务诉讼形态的选择存在不同意见,应综合考虑连带债务的诉讼标的、连带债务的效力等因素,区分不同的连带债务类型,分别采用类似必要共同诉讼和普通共同诉讼的形态。不同的诉讼形态在程序的建构和裁判的效力上会有很大的不同,类似必要共同诉讼侧重连带债务人之间的牵连性,某一连带债务人的行为只要有利于全体,其效力及于全体,法院最终通过既判力主观范围扩张的方式形成合一确定的判决；普通共同诉讼则更强调连带债务人之间的独立性,各连带债务人可以分别行为和裁判,而效力不及于其他人。无论适用何种共同诉讼形态,在构建诉讼程序和作出诉讼裁判时,都应当注意平衡连带债务人之间的牵连性和独立性：类似必要共同诉讼中不能忽视连带债务人在当事人适格等方面所具有的独立性,普通共同诉讼则要强调对连带债务人关于共同事实的一致认定,通过证据共通原则和判决的反射效力,使各连带债务人相互影响,避免矛盾裁判的出现。本文以连带债务在民事诉讼中的具体适用为研究对象,立足于国内外学者的研究成果,尝试进行民事实体法和民事诉讼法的交叉研究,通过对诉讼标的、证据共通原则、既判力等相关理论的运用,对连带债务诉讼问题作了较为细致的分析,综合讨论了连带债务在民事诉讼中适用的全过程。除引言和结语外,本文共分为四章：第一章——连带债务的概念与分类。本章主要从民事实体法的角度介绍连带债务制度的概念、内外部法律关系与分类,属于研究连带债务诉讼的理论铺垫。第二章——连带债务在民事诉讼中的诉讼形态。介绍关于连带债务诉讼形态的各种学说,通过对诉讼标的、债务效力等诉讼形态影响因素的分析,提出按照连带债务的不同类型,分别采用类似必要共同诉讼和普通共同诉讼的形态。第三章——连带债务在民事诉讼中的当事人与证据。根据类似必要共同诉讼和普通共同诉讼形态的不同特点,从当事人与证据两个方面,讨论连带债务在民事诉讼程序中的适用。第四章——连带债务在民事诉讼中的裁判与执行。以类似必要共同诉讼和普通共同诉讼形态为基础,区分类别讨论连带债务的判决、调解与执行,兼顾连带债务人之间的牵连性和独立性。
[Abstract]:Joint and several debt is an ancient system in civil substantive law, which is based on the sufficient protection of creditors, endows creditors with the right to claim freely, and at the same time realizes the fair burden of debtors' liability through the establishment of internal claims. The unique provisions of substantive law on joint and several liabilities, especially the relationship between joint and several debtors, how to be fully reflected and applied in the proceedings. It directly affects the realization of the rights of the obligee and the protection of the rights and interests of the obligor. At present, scholars have different opinions on the choice of litigation form of joint and several debts, and should consider comprehensively the object of litigation of joint and several debts, the effectiveness of joint and several debts, and distinguish the different types of joint and several debts. Use the form of similar necessary joint action and common joint action respectively. Different litigation forms will have great differences in the construction of procedure and the effectiveness of the adjudication. Similar to the necessary joint action, the joint action focuses on the implicability between the joint and several debtors. As long as the behavior of a joint and several debtor is beneficial to the whole, its effect is equal to that of the whole. The court finally forms the judgment determined by the expansion of the subjective scope of res judicata, while the common joint action emphasizes the independence of the joint and several debtors, each joint debtor can act and judge separately, but the effectiveness is not as good as the others. No matter what form of joint action is applicable, in constructing proceedings and making decisions, Attention should be paid to balancing the implication and independence between the joint and several debtors: the independence of the joint and several debtors, such as the suitability of the parties, cannot be ignored in necessary joint actions, The common joint action should emphasize the unanimous recognition of the common facts of the joint and several debtors, through the principle of common evidence and the reflective effect of the judgment, so that the joint and several debtors influence each other and avoid the appearance of the contradictory judgment. This article takes the concrete application of the joint and several debts in the civil action as the research object, based on the domestic and foreign scholars' research results, tries to carry on the cross-study of the civil substantive law and the civil procedure law, through to the lawsuit object, the evidence common principle, With the application of the theory of res judicata and other related theories, this paper makes a detailed analysis on the litigation of joint and several debts, and discusses the whole process of the application of joint and several debts in civil litigation. In addition to the introduction and conclusion, this paper is divided into four chapters: Chapter 1-the concept and classification of joint and several debts. This chapter mainly introduces the concept of joint and several debt system, internal and external legal relations and classification from the perspective of civil substantive law. Chapter two-Litigation form of Joint and several debts in Civil Litigation. This paper introduces various theories about the litigation form of joint and several debts, and puts forward the different types of joint and several debts according to the analysis of the influencing factors such as the object of litigation, the validity of debt and so on. Use the form of similar necessary joint action and common joint action respectively. Chapter III-the parties and evidence of joint and several debts in civil proceedings. According to the different characteristics of similar necessary joint action and common joint action, this paper discusses the application of joint debt in civil proceedings from the two aspects of parties and evidence. Chapter IV-the judgment and enforcement of joint and several debts in civil proceedings. On the basis of similar necessary joint action and common joint action, this paper discusses the judgment, mediation and enforcement of the joint debt, taking into account the implication and independence between the joint debtor and the joint debtor.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1;D923.3

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