连带责任的诉讼方式

(山东大学法学院,山东 青岛266200)

连带责任;诉讼方式;普通共同诉讼;类似必要共同诉讼

Litigation Mode of Joint and Several Liability
WANG Kai—nan

(Law School, Shandong University, Qingdao 266200,China)

joint and several liability; litigation mode; common joint action; similar necessary joint action

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我国实体法关于连带责任的制度设计赋予了债权人充分的选择性请求权,然而对于该制度如何在诉讼中充分体现和运用,理论界对此一直存在争议,实务中法院的做法也存在差异。从实体法出发,紧贴连带责任的特点,通过对三种共同诉讼类型的分析,在现有的民事诉讼基本理论框架内,必要共同诉讼在诉讼标的、既判力以及当事人权益保护方面难以实现逻辑自洽,正确的解决路径在于采取普通共同诉讼的审理方式,并在事实查明、诉讼标的、判决作出与执行等方面进行必要的补充和完善。
The system design of joint and several liability in China's substantive law endows creditors with full selective right of claim. However, how to fully embody and apply the system in litigation has always been controversial in the theoretical circle, and there are also differences in the practice of the court. Therefore, we should start from the substantive law, stick to the characteristics of joint and several liability, through the analysis of three types of joint action, and make a realistic choice within the existing basic theoretical framework of civil action. To solve this problem, it is difficult for the necessary joint action to achieve logical self consistency in the object of action, res judicata and the protection of the rights and interests of the parties. The correct solution lies in adopting the trial mode of ordinary joint action, and making necessary supplements and improvements in the aspects of fact finding, object of action, judgment making and execution.
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