比例连带责任的叠加责任属性与追偿规则设置

The Nature of Overlapped Liabilities of Proportional Joint-and-Several Liabilities and the Establishment of Rules on Recourse

比例连带责任在我国已成为一种重要的司法实践,亟需完善相关理论。比例连带责任的特点是至少一个债务人只承担比例不到100%的连带责任,同时所有债务人的责任比例之和大于100%。比例连带责任的合理解释是分别的侵权责任之(部分)叠加。其适用存在诸多“后端”难题。应当以“叠加的底端连带型”架构来理解比例连带责任,债务清偿顺序为“自上而下”,即先清偿“自己部分”的债务。100%责任人和非100%责任人之间应设置追偿权的顺位。追偿确定最终责任比例时,存在转嫁模式和分摊模式的区别。计算责任比例时,“对外比例叠加法”似优于“叠加部分均分法”。作为追偿的反向,未足额清偿而对连带债务人进行适度的责任增乘时,直接法优于间接法。

Proportional joint-and-several liability has become an important reality in judicial practice in China,and the improvement of relevant theories is urgently needed.Proportional joint-and-several liability is characterized by the fact that at least one debtor bears less than 100%of the joint and several liability,and the sum of the liability proportion of all debtors is greater than 100%.The reasonable explanation of proportional joint-and-several liability is the overlapping of(part of)separate tort liabilities.There are many"back-end"challenges in its application.Proportional joint-and-several liability should be understood in terms of the"overlapped bottom-end joint-and-several"structure,and the sequence of debt repayment is"top-down",that is,the debt of"one‘s own"should be paid off first by each debtor.The sequence of recourse shall be set between the 100%liable person and the non-100%liable person.In determining the ultimate proportion of liability during the recourse,there is a difference between the transfer model and the apportionment model.When calculating the proportion of liability,the"external proportion overlapping method"seems to be better than the"the method of equally dividing the overlapped one".As a reverse of recourse,when the liability of a joint debtor is moderately multiplied due to any uncollectible share,the direct method is superior to the indirect method.