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