违约责任与侵权责任的连带关系

The Joint Relationship of Liability Based on Contract and Tort

2012年最高人民法院公布的"焦建军"案确定了依违约责任与侵权责任而成立的连带债务,然而随后的司法实践中并没有延续这种认识。究其原因,是对连带债务的发生原因认识不足。连带债务可依意定和法定产生,也可依推定产生。我国没有确立连带债务的推定规则,但这种依违约与侵权而产生的连带债务有其现实需求,应当依靠法院在具体案件中的判断予以解决。连带债务的认定应当向形式化发展,只要符合多个债务人承担同一债务,而债权人只能得到一次清偿的外观效果就应当认为连带债务成立。当然这种形式化认定应当受到一定的限制。

In 2012, the Supreme Court announced the ＂Jiao Jianjun＂ case, which admit the establishment of joint liability based on contract and tort liability. But the judicial practice did not continue this understanding. The reason is the lack of understanding of the causes of joint and several liability. Its causes can be contracts and laws, and it may also be presumed. We do not have the rule of presumption of joint and several liability, but it does have real needs, which should rely on the courts to judge in specific cases. The determination of joint and several liability should be formalized, as long as it meets the appearance that several obligors are bound by the same obligation towards an oblige and oblige may require performance from any one of them, until full performance has been received, there is the joint and several liability. Of course, this formalization should be restricted in some degree.