论不真正连带债务之制度构建

发布时间：2018-01-16 11:33

本文关键词：论不真正连带债务之制度构建　出处：《烟台大学》2017年硕士论文　论文类型：学位论文

【摘要】：不真正连带债务概念自出现以来就备受争议,其学说历经百年基本形成了以“原因同一说”“目的共同说”和“同一层次说”为代表或者兼采几种学说的观点,我国学术界基本继承了德国理论界的观点,具有代表性的对不真正连带债务所作定义的是孔祥俊教授。不真正连带债务的构成要件有四:一是债务独立性要件;二是数个债务偶然结合;三是给付标的同一;四是存在终局责任人。不真正连带债务的外部效力表现为债权人对于债务人之一或者全体可以同时或先后为全部或一部之请求;内部效力表现为已为清偿的债务人得向终局责任人追偿。不真正连带债务具有区别于连带债务等相邻法律制度的独立性特征,并被世界各国和不同地区的司法实践所肯定,我国《侵权责任法》的相关条文也体现了不真正连带责任的适用规则。正因不真正连带债务具有独立的法律价值,鉴于我国目前相关立法的缺失,导致司法适用产生混乱,所以将不真正连带债务制度上升到立法层面,构建一套完整的多数人债务体系,对我国未来民法典的回填工程实有裨益,笔者基于此作相应立法思考。
[Abstract]:The concept of unreal joint and several debts has been controversial since its emergence, and its theory has basically formed the viewpoint of "the same reason and the same reason" and "the common purpose" and "the same level" as the representative or the adoption of several theories after a hundred years. The representative definition of unreal joint and several debts is Professor Kong Xiangjun. There are four constitutive elements of untrue joint and several debts: one is the independence of debt; Second, several debts are accidentally combined; Third, the same object is given; Fourth, there is the final responsible person. The external effect of the non-real joint and several debts is that the creditor may request one or all of the debtors at the same time or successively for the whole or one part; The internal effect is that the debtor who has been paid off has to recover from the final responsible person. The non-real joint and several debt has the independence characteristic which is different from the adjacent legal system such as joint and several debt. And confirmed by the judicial practice of countries and different regions of the world, the relevant provisions of our country's Tort liability Law also reflect the applicable rules of non-genuine joint and several liability. It is precisely because the non-genuine joint and several debts have independent legal value. In view of the lack of relevant legislation in our country, resulting in confusion in the judicial application, the system of unreal joint and several debts is raised to the level of legislation, and a complete majority debt system is constructed. It is beneficial to the backfill project of our country's future civil code, based on which the author makes corresponding legislative thinking.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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