Joint and several liability, where is it stipulated in the law?

Article 130 of the General Principles of the Civil Law: Where two or more persons jointly infringe and cause harm to others, they shall bear joint and several liability.

Article 8 of the Tort Liability Law: Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear joint and several liability.

Article 9: Those who instigate or assist others in committing infringing acts shall bear joint and several liability with the perpetrators.

Article 10: Where two or more persons carry out conduct that endangers the safety of others' persons or property, and the conduct of one or more of them causes harm to others, and the specific infringer can be identified, the infringer bears responsibility; Where the specific infringer cannot be determined, the perpetrator bears joint and several liability.

Article 11: Where two or more persons separately commit tortious acts causing the same harm, and each person's tortious conduct is sufficient to cause all the harms, the perpetrators bear joint and several liability.

Article 13: Where the law provides for joint and several liability, the infringed party has the right to request that some or all of the persons jointly and severally liable bear responsibility.

It is mentioned in many civil laws in China, such as the General Principles of the Civil Law, the Contract Law and other laws.

Joint and several liabilityIt is an important civil liability system in China's civil legislation, the purpose of which is to compensate for relief, increase the legal liability of the parties to the civil legal relationship, and effectively protect the legitimate rights and interests of creditors. Joint and several liability is mainly based on contractual relationships such as partnerships, guarantees, joint ventures, and contracts, and the relationship between superiors and subordinates, so they are scattered in the General Principles of the Civil Law, the Contract Law, the Guarantee Law and other laws and regulations as well as relevant judicial interpretations.

1. What is the legal provision for joint and several liability?

1. If the parties agree in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint and several liability guarantee. In the event that the debtor of the joint and several liability guarantee fails to perform the debts due or the circumstances agreed upon by the parties occur, the creditor may request the debtor to perform the debts, and may also request the guarantor to assume the guarantee liability within the scope of the guarantee.

2. Legal basis: Article 688 of the Civil Code of the People's Republic of China.

Where the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint and several liability guarantee.

In the event that the debtor of the joint and several liability guarantee fails to perform the debts due or the circumstances agreed upon by the parties occur, the creditor may request the debtor to perform the debts, and may also request the guarantor to assume the guarantee liability within the scope of the guarantee.

2. What are the circumstances of joint and several liability?

The circumstances of joint and several liability are as follows:

1. Joint and several liability due to guarantee. Guarantee refers to the act of agreeing between the guarantor and the creditor that when the debtor fails to perform the debt, the guarantor will perform the debt or assume the responsibility according to the agreement. There are two types of guarantees: general warranties and joint and several liability warranties.

Where the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint and several liability guarantee. If the debtor of the joint and several liability guarantee fails to perform the debt upon the expiration of the debt performance period specified in the main contract, the creditor may require the debtor to perform the debt, and may also require the guarantor to bear the guarantee liability within the scope of the guarantee. The guarantor has the right to recover from the debtor after assuming the guarantee liability.

2. Joint and several liability in partnership. The partners shall be jointly and severally liable for the debts of the partnership, unless otherwise provided by law. If the partner repays the debts of the partnership in excess of the amount he should bear, he has the right to recover from the other partners.

This joint and several liability is for the external relationship between the partners and the creditors, and is still a share liability within the partnership. The joint and several liabilities in a partnership joint venture are similar to those in a partnership, and the parties to a partnership joint venture shall be jointly and severally liable for the joint debts in accordance with the relevant laws, regulations or contracts.

3. Bear joint and several liability due to **. If the authorization of the power of attorney is unclear, the person being ** shall bear civil liability to the third party, and the ** person shall be jointly and severally liable. If the person colludes with a third party to damage the interests of the person being harmed, the person and the third party shall be jointly and severally liable

Where the third party knows that the actor does not have ** rights, exceeds ** rights, or ** rights have been terminated, and still causes harm to others by carrying out civil acts with the actor, the third party and the actor are jointly and severally liable.

It refers to a kind of civil liability in which two or more parties bear all or part of their joint debts in accordance with the provisions of the law or the agreement of the parties, and can give rise to their internal debt relations as a result of such malpractice. When there are more than one person responsible, each person is responsible for paying off all the prudent debts, and there is a joint and several relationship between the responsible persons. Paraphrasing joint and several liability as a compound phrase with its central word in the word "responsibility".

"Jointly" is placed before it as a qualifying word, which emphasizes the essential nature of this kind of responsibility, and is intended to enable the judge to grasp "the essential characteristics of a thing that distinguishes it from other things" and apply it correctly. Joint and several liability is a legal provision to ensure the realization of creditor's rights after the occurrence of a creditor's rights and debts relationship in civil and commercial activities, which is scattered in laws, regulations and judicial interpretations. It reveals the relationship between two parties (creditor and debtor) and three perspectives, including both the creditor and the debtor, as well as the one or more parties involved in the internal legal relationship.

2] Composition Joint and several liability in a civil legal relationship is a form in which several debtors in a joint and several debt relationship bear civil liability to creditors. Therefore, joint and several liability needs to meet the general constitutive elements of civil liability, that is, the jointly and severally liable person must be subjectively at fault; The conduct must be unlawful; the fact that the damage must have been caused; There must be a causal link between the violation and the harmful consequences.

However, since civil legislation allows joint and several liability to be set up without cause, that is, the parties agree on their own, there are exceptions to the composition of joint and several liability. For example, although the guarantor in a guarantee contract is not subjectively at fault and has not committed any illegal acts, he should still be jointly and severally liable.

The legal basis for joint and several liability is as follows: The investors of a for-profit legal person shall not abuse the independent status of the legal person and the limited liability of the investors to harm the interests of the creditors of the legal person; Those who abuse the independent status of a legal person and the limited liability of investors to evade debts and seriously harm the interests of creditors of legal persons shall be jointly and severally liable for the debts of legal persons. According to the second paragraph of Article 83 of the Civil Code, the investor of a for-profit legal person shall not abuse the independent position of the legal person and the limited liability of the investor to harm the interests of the legal person who has the right to sell debts; Those who abuse the independent status of a legal person and the limited liability of investors to evade debts and seriously harm the interests of creditors of legal persons shall be jointly and severally liable for the debts of legal persons.

Legal analysis: If two or more persons bear joint and several liability in accordance with the law, the right holder has the right to request that some or all of the jointly and severally liable persons bear responsibility. The share of liability of the jointly and severally liable persons shall be determined according to the size of their respective liabilities; Where it is difficult to determine the size of the responsibility, the responsibility is to be borne equally.

The jointly and severally liable persons who are actually liable in excess of their own share of liability shall have the right to recover compensation from other jointly and severally liable persons.

Legal basis: Article 178 of the Civil Code of the People's Republic of China: Where two or more persons bear joint and several liability in accordance with law, the rights holder has the right to request that some or all of the persons jointly and severally liable bear responsibility. The share of liability of the jointly and severally liable persons shall be determined according to the size of their respective liabilities; Where it is difficult to determine the size of the responsibility, the responsibility is to be borne equally.

The jointly and severally liable persons who are actually liable in excess of their own share of liability shall have the right to recover compensation from other jointly and severally liable persons. Joint and several liability shall be prescribed by law or agreed upon by the parties.

Article 178 of the Civil Code stipulates that joint and several liability can arise by agreement between the parties, or it can be statutory joint and several liability, such as joint and several liability of partnerships, joint and several liability due to joint infringement, etc.

According to the second paragraph of Article 83 of the Civil Code, the investor of a for-profit legal person shall not abuse the independent status of the legal person and the limited liability of the investor to harm the interests of the creditors of the legal person; Those who abuse the independent status of a legal person and the limited liability of investors to evade debts and seriously harm the interests of creditors of legal persons shall be jointly and severally liable for the debts of legal persons.