不真正連帶責(zé)任之獨(dú)立性研究
發(fā)布時(shí)間：2019-06-28 20:20
【摘要】：不真正連帶責(zé)任,在大陸法系國(guó)家也稱為不真正連帶債務(wù),用以解決司法實(shí)踐中大量出現(xiàn)的數(shù)個(gè)侵權(quán)人基于不同事由對(duì)同一被侵權(quán)人承擔(dān)全部損害賠償責(zé)任的問題。作為民法中不可或缺的責(zé)任形態(tài)或債務(wù)形式,盡管當(dāng)前各國(guó)立法中鮮有不真正連帶責(zé)任的一般性條款,但因該制度所蘊(yùn)含的獨(dú)特法律價(jià)值和功能而為判例、學(xué)說所采納。不真正連帶責(zé)任作為實(shí)體法與程序法緊密結(jié)合的法律制度,對(duì)其進(jìn)行研究源于理論與現(xiàn)實(shí)的實(shí)際需要。我國(guó)現(xiàn)行民商事法律中存在體現(xiàn)不真正連帶責(zé)任性質(zhì)的條款,其作為立法者有意選擇的價(jià)值調(diào)整工具被賦予了新的特質(zhì),不同于傳統(tǒng)意義上的不真正連帶責(zé)任。目前,我國(guó)法律雖然規(guī)定了不真正連帶責(zé)任適用的具體情形,但缺乏對(duì)不真正連帶責(zé)任的一般性規(guī)定。同時(shí),對(duì)其研究不夠深入,學(xué)者之間爭(zhēng)議較大,其中不乏有質(zhì)疑不真正連帶責(zé)任的聲音出現(xiàn)。隨著經(jīng)濟(jì)社會(huì)的發(fā)展,法律所調(diào)整的社會(huì)關(guān)系日益復(fù)雜多樣,近年來涉及不真正連帶責(zé)任的案件日益增多,已成為司法實(shí)踐中的難點(diǎn)和熱點(diǎn)問題。立法的不完善和理論研究的不充分給不真正連帶責(zé)任的司法適用帶來困擾。本文通過對(duì)不真正連帶責(zé)任基本范疇的界定和基礎(chǔ)理論的研究,旨在論證不真正連帶責(zé)任作為獨(dú)立責(zé)任形態(tài)的價(jià)值和意義,促進(jìn)該制度的可操作化,為其司法適用提供理論支撐。本文對(duì)不真正連帶責(zé)任獨(dú)立性的研究主要分為如下幾個(gè)部分:首先是不真正連帶責(zé)任的基礎(chǔ)理論。這一部分包括不真正連帶連帶責(zé)任的起源與發(fā)展、內(nèi)涵及構(gòu)成、法律效力等內(nèi)容,目的是從不真正連帶責(zé)任本體的角度對(duì)此種責(zé)任形態(tài)進(jìn)行研究,并為后文的論證提供理論依據(jù)。其次是不真正連帶責(zé)任的獨(dú)立性基礎(chǔ)與制度價(jià)值。該部分是文章的核心,本部分首先系統(tǒng)比較了不真正連帶責(zé)任與其他責(zé)任形態(tài),接著從自由價(jià)值與秩序價(jià)值、責(zé)任歸責(zé)與損害救濟(jì)、弱者傾斜保護(hù)與舉證方便、矯正正義到分配正義等方面進(jìn)行了論證,并將侵權(quán)行為形態(tài)、歸責(zé)原則、侵權(quán)責(zé)任形態(tài)進(jìn)行了有機(jī)地結(jié)合。再次,本文結(jié)合我國(guó)實(shí)際,從民事主體角度、民事立法角度、民事司法角度論證了我國(guó)構(gòu)建不真正連帶責(zé)任制度的現(xiàn)實(shí)意義,并對(duì)不真正連帶責(zé)任的完善提出了建議。最后,不真正連帶責(zé)任作為實(shí)體規(guī)范與程序規(guī)范相結(jié)合的統(tǒng)一整體,實(shí)體權(quán)利的實(shí)現(xiàn)需要程序法的支持,對(duì)此本文從訴訟形式、訴訟當(dāng)事人的追加等問題論證了不真正連帶責(zé)任在程序法層面的特殊性及司法適用。經(jīng)過研究,本文認(rèn)為,不真正連帶責(zé)任并非邏輯推理的結(jié)果,而是對(duì)現(xiàn)實(shí)情況的歸納和總結(jié)。不真正連帶責(zé)任無法被其他責(zé)任形態(tài)所涵攝,應(yīng)對(duì)其獨(dú)立性予以肯定。本文以綜合的視角展開研究,在澄清不真正連帶責(zé)任的理論爭(zhēng)議的同時(shí),為其司法適用提供理論依據(jù)。只有將不真正連帶責(zé)任制度實(shí)體法上權(quán)利義務(wù)的規(guī)定與訴訟程序相互協(xié)調(diào)、相互配合,才能真正實(shí)現(xiàn)這一制度在最大程度保障和便利受害人獲得救濟(jì)的基礎(chǔ)上,合理規(guī)制各方權(quán)利義務(wù)關(guān)系、公正解決糾紛的價(jià)值。此外,本文結(jié)合當(dāng)前我國(guó)民事立法現(xiàn)狀和民法法典化趨勢(shì),為今后我國(guó)民事立法完善不真正連帶責(zé)任制度奠定理論基礎(chǔ)。
[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.
【學(xué)位授予單位】：北京工商大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D923
本文編號(hào)：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.
【學(xué)位授予單位】：北京工商大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D923
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