【作者】 刘宏渭；

【导师】 刘保玉；

【作者基本信息】 山东大学 ， 民商法， 2012， 博士

【摘要】 连带债务是多数人债务的一种,自罗马法以来就是一种重要的债务类型,也是债法领域既基本又复杂的问题。现代社会,随着社会经济生活的发展和民商事交易的日趋频繁,尤其是风险社会的逐步形成,连带债务在民商事法律制度中也愈发重要。各国或地区的私法制度均有对连带债务的明确规定,尽管其具体的制度安排有所不同。我国关于连带债务的基本法律规定体现在《中华人民共和国民法通则》第87条、《中华人民共和国合同法》第90条和《中华人民共和国物权法》第102条。2010年施行的《中华人民共和国侵权责任法》第13条、第14条应属对连带责任的内外部效力的一般规定。另有散见于其他民商事法律中的有关连带责任的规定。此外,其他法律法规、司法解释中带有“连带债务”、“连带责任”、“连带赔偿责任”、“连带保证”、“连带清偿责任”等字样的更是不胜枚举。尽管有关连带债务或连带责任的规定数目繁多,但关于连带债务的概念性规定(立法定义)并不明确。我国民商法学界对连带债务进行深入阐述的成果较少,现有的论著也基本是对德国学者或台湾学者论著的转述。对连带债务的界定、连带债务的成立要件、债权人对债务人中之一人的事项是否对其他连带债务人发生效力、连带债务人之间怎样实现求偿,等等,这些问题一直困扰着理论界和实务界。加之近年来民商法学界还有很多学者对“不真正连带债务”津津乐道,更需要对两者予以界分。在实体法关于连带债务的规定缺乏系统性和可操作性的同时,连带债务的实现与诉讼程序的衔接,同样缺乏针对性和实践性。我国民法典正在紧锣密鼓的制定进程中,连带债务在未来民法典中应如何规定,既影响民法典总则的一些制度设计(如合伙、代理),更关涉债法总则和债法分则。同时,连带债务诉讼问题在我国《民事诉讼法》的修订中也应予以明确和完善。因此,深入系统研究连带债务,对立法和司法都具有非常重要的意义。本文以连带债务制度作为研究对象,立足现有的研究成果,在具体内容上有所侧重与取舍。考虑到我国未来民法典的制定,其中的债编总则、分则与民法典总则的关系,认为在民法典债编总则中明确规定多数人之债、连带之债的发生原因、对内对外效力、债权人对连带债务人一人所生事项对其他连带债务人的效力、连带债务人之间的求偿权以及求偿权的扩张等,以统领债编分则部分的相关规定,实有必要。本文共分五部分：第一部分是“绪论”,说明本文的选题背景与研究意义,将连带债务的立法沿革及各国继受只做简单介绍,在现有的理论研究基础上,明确本文的研究思路、方法、主要观点和可能的创新。同时申明本文赞同连带责任系为连带债务之一种,以框定后文的论述。第二部分是“连带债务的法理基础与制度价值”。本章系连带债务制度的理论铺垫,首先将法的正义理念作为核心价值,对连带债务制度的功能作具体分析,如自己责任、公平担责、填补损害等,如何体现了正义理念。在正义理念的诸价值中,法定连带债务侧重追求安全价值,而约定连带债务则侧重于自由价值。其次,将正义的核心价值落实到私法上的权利及其保护,论述连带债务制度对债权人与债务人的双重保护,尤其是在现代市场经济条件下,连带债务制度的发展已更倾向于商事活动领域。再次,以法经济分析理论衡量连带债务制度,分析连带债务制度中的公平与效率等的具体表现,无论是有关连带债务的实体法还是程序法,无论是对债权人还是对连带债务人,其利益维护均需考量“经济”因素。第三部分是“连带债务类型化分析”。本章仅循传统民法理论,没有突破法定连带债务与意定连带债务的传统分类。在约定连带债务中,一是明确了成立连带债务的意思表示不限于一个,二是成立连带债务的意思表示原则上应为明示。在法定连带债务中,对我国现行法的林林总总的连带债务的规定进行分类,借鉴亲属法上的亲等制度,以连带债务人之间的亲疏关系为标准将连带债务分为团体目的型连带债务、同一合同型连带债务、保证型连带债务和侵权赔偿型连带债务。由于法定连带债务中最常见最典型的是侵权连带债务,本文结合我国侵权责任法的相关规定,另对该种类型的连带债务进一步作了分类。而对于不真正连带债务,本文在类型化分析中给予“例外”的地位,不赞同将其作为未来民法典之具体制度予以规定。第四部分是“连带债务的法律效力”。本章重点探讨连带债务的外部效力和内部效力,尤其借鉴了台湾立法例。外部效力包括债权人的权利、债权人对连带债务人一人的事项是否对全体债务人发生效力；内部效力主要解决债务人之间的求偿权问题,包括求偿权的移转、代位和扩张等。连带债务的内外部效力,在我国现行立法中几乎没有规定,本文结合我国民法典起草过程中的几部建议稿的相关内容提出了具体建议。第五部分是“连带债务诉讼问题研究”。本章结合民事诉讼法的相关规定,对民事诉讼法学界的相关研究成果予以充分借鉴,首先,在宏观层面基于不同的诉讼模式解读了其与连带债务诉讼的关系,提出了在处理与连带债务诉讼密切相关的诉讼指挥权、程序裁量权等与当事人主义的关系时,应坚持当事人主义,但又要适度给予限制。其次,对连带债务共同诉讼问题进行细致分析,将大陆法系、英美法系的相关做法相结合,在民事诉讼法学界现有研究成果基础上,提出不宜对连带债务诉讼的模式整齐划一,而应根据连带债务的不同类型,给予不同的处理。最后,本着诉讼经济和诉讼效率,建议在不妨碍和推延债权人保护的前提下,可以将连带债务人之间的份额分摊和求偿一并解决。更多还原

【Abstract】 Joint and several obligation is a kind of obligation with several creditors or several debtors, which has been of great importance ever since the Rome Law, and still remains a fundamental yet complicated issue in the domain of law of obligation. It is now holding an even more significant place in the civil and commercial legal system, due to the development of economic and social life, the increased frequency of commercial transactions in the modern world, and especially, the coming into being of risk society. Despite the differences in the actual stipulations, joint and several obligation is provided in private laws of countries and regions all over the world. In China, the provisions concerning joint and several obligation are: Article87of the General Principles of Civil Law, Article90of the Contract Law of People’s Republic of China, and Article102of the Real Right Law of the People’s Republic of China. Also, Article13and14of the newly implemented Tort Law of the People’s Republic of China shall be seen as general stipulations about internal and external validities of joint and several obligation. Apart from the above mentioned, there are numerous provisions concerning this issue in other civil and commercial laws, administrative regulations and judicial interpretations, in the name of joint and several obligation or joint and several liability. Although the provisions are many, the concept (legal definition) of joint and several obligation is still ambiguous. Currently there are very few published works expounding joint and several obligation in China’s mainland, the majority being paraphrases of works of German or Taiwan scholars. On one hand, many academic issues have been perplexing both theoretical and practical scholars, to name a few, the concept of joint and several obligation, the conditions of establishment, the validity of the creditor’s action to one joint debtor on the others, and the obtainment of contribution between joint debtors. And the heated discussion about Unechte Gesamtschulden among scholars of civil and commercial law in recent years is calling for a clear demarcation of the two concepts. On the other, along with the lack of systematicness and exercisability in the substantial law, there is also a lack of pertinency and practicality in the fulfillment of joint and several obligation and the according civil procedure. Now that China is in its codification of the Civil Code, in which the stipulation of joint and several obligation concerns not only the general provisions of the civil code (e.g. partnership and agency), but also the general and specific provisions of the law of obligations, and the joinder of joint and several obligation also needs clarification and perfection, an in-depth study of joint and several obligation is of great significance to both legislation and judicial practice.This dissertation on joint and several obligation is based on current studies, with emphasis laid on some specific issues. Taking into consideration the codification of the Civil Code, and the relationship between the general and specific provisions of the Law of Obligations and the general principles of the Civil Code, the author thinks it necessary that the general provisions of the Law of Obligations provide the following issues, thereby offering a legal foundation for the stipulations in the specific provisions:the legal definition of joint and several obligation, the conditions of establishment, the internal and external validities, the validity of the creditor’s action to one joint debtor on the others, the obtainment of contribution between joint debtors, and the expansion of right of claim.This dissertation begins with the introduction as other dissertations. The introduction summarizes the research’s background and significance, the research’s current situation home and abroad, in which the legislation evolution of joint and several obligation and inheritance in various countries is described briefly. Based on the laboratorial work, the dissertation’s make it clearly that the joint and several liability is one kind of the joint and several obligation, so as to confine discourse and exposition. The introduction further comprises the basic idea and primary coverage, the research method and the main points and conceivable innovation as well.This dissertation consists of four parts in addition to the introduction:The first part is the Analysis of the legal basis and value of joint and several obligation. This part lays the theoretical basis of joint and several obligation. It first analyses the functions of joint and several obligation with the idea of justice as the core value, pointing out how these functions, such as self-liability, equitable liability and the indemnification of damages, have reflected the idea of justice. Then, it focuses on the value of justice in the rights of private law and the protection of such rights, probing into the protection provided for both the creditor and the debtor, particularly with the development of joint and several obligation towards the commercial field in modern market-oriented economy. Furthermore, it applies economic methods to the analysis of the legal issue of joint and several obligation, discussing the realization of equality and efficiency with this regard. Economic factors are to be taken into consideration to both the substantial and procedure law. The same is true of the interests of both the creditor and the debtors.The second part is Analysis of the classification of joint and several obligation.This part follows the traditional classification of joint and several obligation in civil law, dividing it into legal obligation and voluntary obligation. In the scope of legal obligation, classification is made by analogy to degree of kinship system. According to the closeness between debtors, the existing provisions about joint and several obligation in China are classified into four categories, namely, joint and several obligation that is caused by the same aim of the group, by the same contract, by guaranteed obligation, and by tort. Since joint and several obligation caused by tort is the most common of all legal obligations of this type, it is further classified with reference to relevant provisions in the existing Tort Law. As to Unechte Gesamtschulden, this part regards it as an exception to the legal system of joint and several obligation.The third part is Analysis of the legal validity of joint and several obligation.The external validity consists of right of creditor, and the validity of the creditor’s action to one joint debtor on the others, while the internal validity deals with the pursuit of contribution within debtors, including the assignment, subrogation and expansion of right of claim. As there is virtually no stipulation on the internal and external validities of joint and several obligation in the existing law in China, suggestions are offered in this part with reference to the several proposal drafts of the Civil Code.The forth part is Analysis of the joinder of joint and several obligation.This part is based on the relevant provisions in the Civil Procedure Code, integrated with the academic study of civil procedure law. It first contends that adversarial system shall be adopted with due restrictions in dealing with the relationship between commanding power and discretion of the judge and the adversary system. Then, with a detailed study of practices of joinder of joint and several obligation in both the civil law and common law system, combined with results from current researches, this part puts forward that there shall be a differentiation in the mode of joinder of joint and several obligation, in accordance to the nature of joint and several obligation of each case. Finally, it suggests that debtor’s recourse and contribution should be settled preferably in the same lawsuit on the principle of suit economy.更多还原