连带责任诉讼形态的选择

The Choice of Action Forms of Joint and Several Liability

连带责任的本质在于赋予债权人以选择性的请求权,从而加大债务人的责任,保障债权人的权利,这种实体上的规定如何能在诉讼程序中得到充分反映和运用,将直接影响到债权人权利的实现。理论上对连带责任诉讼形态的选择存在不同意见,焦点集中在类似必要共同诉讼还是普通共同诉讼的选择上。在现实法律环境下,应当结合连带责任的性质、诉讼标的的识别标准、连带责任的效力等因素进行综合考虑,不必作必要共同诉讼还是普通共同诉讼的选择,也无须在共同诉讼中采用类似必要共同诉讼的特殊类型,而应当立足于现实需要,立足于诉讼法与实体法的关系,充分反映当事人实体权利的行使过程。

The essence of joint and several liability is to give the creditor the right to request which can be chosen in order to increase the debtors responsibility and protect the rights of creditors. How the provisions of substantive law can be fully reflected and used in the proceedings will directly affect the realization of the rights of creditors. As to the form of action of joint and several liability, there exist different point of views. It focuses on the choice between the action similar to the indispensable joint action and the common joint action. In todays legal environment, the choice of form of action should consider the nature of joint and several liability, the understanding of subject matter of litigation, and the effectiveness of joint and several liability. Do not have a choice between the common joint action and the indispensable joint action, and there is no need to choose the action similar to the indispensable joint action. The choice should be based on practical needs and the relationship between the procedure law and substantive law, so as to fully reflect the exercise of the rights of the party entities.