连带债务部分免除涉他效力规则的解释论展开

Interpretative Development of the Rule of Partial Exemption of Joint and Several Debts from Exclusionary Effects

为统一对于连带债务部分免除涉他效力的不同认识与裁判差异,《民法典》第520条第2款采纳了限制绝对效力模式,在尊重当事人真实意思的基础上实现对连带债务各方当事人的利益平衡,从而克服绝对效力模式偏向于维护其他连带债务人利益以及相对效力模式偏向于维护债权人利益的不足。被免除债务的债务人应向债权人正确披露其在连带债务内部应承担的份额,否则构成对债权人的欺诈,债权人可援引《民法典》第148条撤销部分免除的法律行为;即便债权人未行使撤销权,被免除债务的债务人也应承担其对债权人造成的信赖利益损失。债权人和被免除债务的债务人还负有将免除事项向其他连带债务人通知的义务,以避免其他连带债务人在不知情的情况下多余清偿。此外,债权人对部分债务人免除债务的行为,并不会对其他连带债务人产生诉讼时效中断的效力,对此可类推适用《民法典担保制度解释》第29条第2款的规定。

In order to unify the different understanding and decision-making differences in the adjudication of partial exemption of joint debts on others,Paragraph 2 of Article 520 of the Civil Code adopts the model of limiting absolute effectiveness.On the basis of respect for the true intentions of the parties to achieve a balance of interests for parties to the joint debts,so as to overcome the shortcomings of the absolute effectiveness model,which is biased in favor of safeguarding the interests of the other joint debtors.As well as the relative effectiveness model,which is biased in favor of safeguarding the interests of the creditors.The debtor whose debt has been discharged should correctly disclose to the creditor its share of the joint debts,otherwise it constitutes a fraud against the creditor,who may invoke Article 148 of the Civil Code to revoke the legal act of partial exemption.Even if the creditor does not exercise the right of avoidance,the debtor whose debt has been discharged is also liable for the loss of reliance benefit it has caused to the creditor.The creditor and the debtor whose debt has been discharged also have the obligation to notify the other joint debtors,in order to avoid redundancy of liquidation without the knowledge of the other joint debtors.The creditor's partial exemption of part of the joint debtors does not have the effect of interrupting the statute of limitations for the other joint debtors.And the Provisions of Paragraph 2 of Article 29 of the Interpretation of the Civil Code Guarantee System shall be applied in this regard.