连带责任人诉讼地位研究

发布时间：2018-05-04 07:04

本文选题：民事连带责任人 + 诉讼地位　；参考：《湘潭大学》2014年硕士论文

【摘要】：根据实体法理论研究，连带责任法律关系中的债权人享有绝对的选择权，即债权人为了实现债权而选择的履行对象、履行顺序、履行内容都享有绝对的选择权，从而保障债权人债权的实现。实体法上称之为选择债权，这一理论落实到民事诉讼程序中表现为可分之诉：债权人可以起诉其中一位、几位或全部连带责任人，先后或同时履行部分或全部债权，被请求的连带责任人不得拒绝。然而，根据我国民事诉讼中共同诉讼人制度，因上述选择债权无法得到实现而提起诉讼时，应将所有债务人作为共同被告，即必要共同诉讼。在司法实践中，法院对于涉及连带责任案件的审理，一般表现为必要共同诉讼的形式。债权人仅对一部分连带债务人提起诉讼时，法院要依职权将其他连带责任人追加为共同被告，否则即是当事人不适格。面对实体法与程序法的冲突，很多学者没有直接谈及连带责任人的诉讼地位，而是对连带责任的诉讼形式展开了探讨，形成的观点主要有：固有必要共同诉讼形式、类似必要共同诉讼形式、普通共同诉讼形式。实际上，研究连带责任的诉讼形式，即是在论述连带责任人究竟以何种身份进行诉讼。在理论研究中，学者研究的切入点不同、追求的价值目标各异等必然形成不同的结论。但无论如何，我们在研究连带责任人的诉讼地位时，必须明确以下几个问题：第一，明确两个关键制度，即连带责任制度和共同诉讼制度。我们应该分析两个制度各自追求的价值目标，在此基础上寻找两者价值目标的平衡点以将两个制度勾连起来。第二，研究连带责任人的诉讼地位，我们必须面对的一个理论难题即连带责任诉讼的诉讼标的。根据诉讼标的理论可知，诉讼标的可以作为确认当事人是否适格的根据、法院是否可以依职权追加当事人的依据、确认是否存在重复诉讼的问题等。所以，明确连带责任诉讼的诉讼标的是确定连带责任人诉讼地位的必经途径。第三，债权人为了债权最大化实现往往更希望按照实体法的规定赋予其绝对的选择权；连带责任人为了避免再次被起诉，往往更希望在民事诉讼程序中，，既解决对外债权，又实现连带责任人内部求偿权。这就需要存在这样一个程序：一方面能实现债权人的选择权，一方面可以保障纠纷尽量一次解决，避免连带责任人的讼累。所以，我们在认定连带责任人的诉讼地位时，必须认真平衡当事人双方的权益。以上三个问题的逐步清晰，即构成了本文的主要研究内容。文章结合上述三个问题的理解，认为连带责任人应该以普通共同诉讼人身份参加诉讼。这是作者基于我国对连带责任制度和共同诉讼制度的立法现状和理论研究现状做出的选择。为了保证连带责任人以普通共同诉讼人身份参加诉讼程序更加畅通，文章提出我们应该进一步完善连带责任的实体规范、明确证据共通原则和加强法官阐明权的发挥。
[Abstract]:According to the theory of substantive law, the creditors in the legal relationship of joint and several liability enjoy the absolute right of choice, that is, the object of performance chosen by the creditor for the realization of the creditor's rights, the order of performance and the content of performance have the absolute right of choice. In order to protect the realization of creditor's rights. In substantive law, it is called selective creditor's right. This theory is embodied in civil procedure as follows: creditor can sue one of them, several or all of the joint and several responsible persons, perform part or all of the claims successively or at the same time. The requested joint and several responsible person may not refuse. However, according to the system of joint litigants in civil litigation in our country, when the claims of the choice mentioned above cannot be realized, all debtors should be regarded as co-defendants, that is, necessary joint action. In judicial practice, the trial of cases involving joint and several liability is generally manifested in the form of necessary joint action. When the creditor only brings an action against a part of the joint debtor, the court should append the other joint and several liable persons as co-defendants ex officio, otherwise, the parties will be uncomfortable. In the face of the conflict between substantive law and procedural law, many scholars have not talked directly about the status of joint and several responsible persons, but have discussed the litigation form of joint liability. Similar necessary joint action form, common joint action form. In fact, to study the litigation form of joint liability is to discuss exactly what kind of action the joint and several responsible person is in. In the theoretical research, different breakthrough points and different value goals of scholars inevitably lead to different conclusions. However, when we study the litigation status of the joint and several responsible persons, we must make clear the following issues: first, make clear two key systems, namely, the joint liability system and the joint action system. We should analyze the value goals pursued by the two systems, and on this basis, find the balance of the two value goals in order to connect the two systems. Second, to study the litigation status of the joint and several responsible person, we must face a theoretical problem that is the litigation object of the joint and several liability litigation. According to the theory of object of action, the subject matter of litigation can be regarded as the basis of confirming the suitability of the parties, whether the court can add the basis of the litigants ex officio, and whether there is the problem of repeated litigation, etc. Therefore, defining the litigation object of joint and several liability is the necessary way to determine the litigation status of joint and several liability. Third, in order to maximize claims, creditors often prefer to give them absolute option according to the provisions of substantive law; in order to avoid being prosecuted again, the joint and several responsible persons often prefer to settle foreign claims in civil proceedings. And realize the joint and several responsible person internal claim right. This requires the existence of such a procedure: on the one hand can realize the creditor's right of option, on the other hand, can protect the dispute as far as possible to resolve, avoid the burden of litigant. Therefore, we must carefully balance the rights and interests of both parties when determining the litigation status of joint and several responsible persons. The three questions above are gradually clear, that is, constitute the main research content of this paper. Combined with the understanding of the above three questions, the author thinks that the joint and several responsible persons should participate in the litigation as common joint litigants. This is the author's choice based on the current legislation and theoretical research of joint and several liability system and joint action system in China. In order to ensure that the joint and several responsible persons participate in the proceedings more smoothly as common joint litigants, the article puts forward that we should further improve the substantive norms of joint and several liability, clarify the principle of common evidence and strengthen the exertion of the judge's right to clarify.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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