摘要
我国《公司法》存在用连带责任替代连带之债、连带责任与无限责任、补充责任混同使用的现象,给理论与司法实践造成困扰。究其原因是对商事连带责任与民事连带责任的关系界定不清,对公司法中的商事连带责任制度缺乏体系化思考与精细化设计。连带之债起源于罗马法的整体之债,形成于中世纪注释法学的理论抽象,发展于近现代民法。近现代商法将法定原因连带责任引入商事规范,构建了商事连带责任制度。商事连带责任与民法连带之债共同具有给付与清偿的整体性特征,但商事连带责任也具有自身的商事特性。由于商事信义义务的道德标准高于民事诚信义务,商事法定连带责任相对于民事连带责任的适用范围更为广泛。基于商事领域的公司股东有限责任制度,商事连带责任可为有限连带也可为无限连带。我国《公司法》未来的修订应在我国《民法典》连带之债规定的基础上对商事连带责任进行体系化贯通,谨慎设定法定连带责任,厘清连带责任与无限责任的关系,对有限连带责任与无限连带责任、连带清偿责任与补充清偿责任进行细化区分。
There are replacement of joint and several creditors’ right or obligation with joint and several liability,the misuses between joint and several liability and unlimited liability or supplementary liability,which cause troubles in theory and judicial practice.The reasons include the unclearly defined relationship between commercial joint and several liability and civil joint and several liability,and the lack of systemic thought and refined design of the regime of commercial joint and several liability in the Company Law.Joint and several obligation was originated from the obligatium in solidum of Roman Law,formed in the theoretical abstraction by medieval glossators,and developed in modern civil law.Modern Commercial Law introduces joint and several liability based on statutory reasons into commercial norms,and thus a system on commercial joint and several liability being established.Both commercial joint and several liability and civil joint and several obligation have the holistic feature of performance and discharge,but commercial joint and several liability also has its own commercial characteristics.Since the moral standard of commercial fiduciary duty is higher than that of civil duty of good faith,commercial statutory joint and several liability has a wider scope of application than that of civil joint and several liability;based on the system of limited liability of company shareholders in the commercial field,commercial joint and several liability can be limited or unlimited.In the future amendment to Company Law of China,systematical coordination should be made on the commercial joint and several liability to exercise prudence in setting a statutory joint and several liability,clarify the relationship between joint and several liability and unlimited liability,distinguish limited joint and several liability from unlimited joint and several liability,joint and several liability for discharge from supplementary liability for discharge.
出处
《政治与法律》
CSSCI
北大核心
2021年第3期128-136,共9页
Political Science and Law
基金
陕西省社会科学基金项目“我国商事信用联合奖惩及预警制度研究”(项目编号:2020E012)
西北政法大学青年学术创新团队基金项目“地方不良资产管理法律问题研究”的阶段性成果。
关键词
连带责任
无限连带责任
有限连带责任
连带清偿责任
商事连带责任
公司法
Joint and Several Liability
Unlimited Joint and Several Liability
Limited Joint and Several Liability
Joint and Several Liability for Discharge
Commercial Joint and Several Liability
Company Law
