连带债务人之间追偿权的法教义学构建

The Construction of Legal Dogmatics of the Recourse between Solidary Obligors

构建我国民法上有关连带债务人之间追偿权的法教义学体系应以《民法典》第519条为基础。此种追偿权应当是一种以公平为基础,以不当得利请求权和代位权为主要内容的复合型的债权请求权。追偿权行使条件的否定说模式在现行体制下难以实现。追偿权的行使范围包括履行债务人超过自己份额承担的债务本金、期内利息、共同的迟延履行利息、超出费损以及上述诸项的追偿利息。追偿权主要受到债权人的优先利益和其他债务人利益的限制。后者的限制主要表现为排除连带性和抗辩转移。抗辩转移效力应当适用于抵销权。

The construction of the dogmatics system of the right of recourse between solidary obligors in the civil law of China should be based on article 519 of the Civil Code.The right of recourse should be a kind of compound right of claim in personam,which is based on equity and mainly consists of the claim of unjust enrichment and subrogation.It is difficult to realize the negation mode of the conditions for the exercise of the recourse under the current system.The exercise scope of the recourse includes the principal of the obligation,the interests within the period,the common interests of delay in performance,the fee and the loss,which are all borne by the obligor who has performed in excess of his share,and moreover the recourse interests of the above items.The recourse is mainly restricted by the priority of the creditor and the interests of the other debtors.The restriction of the latter is mainly manifested in the exclusion of solidarity and the transfer of defense.The transfer effect of defense should be applied to the right of set-off.