论文部分内容阅读
古典罗马法发展连带债权制度(或称共同及连带债权人制度)是为了方便多数人管理其债权。罗马法上不承认代理与债权让与。只有连带债权制度能允许每个债权人收取债权、对债务人提起诉讼或处分债权并对全体债权人发生效力。欧洲普通法中承认代理与债权让与,因此不再需要连带债权。然而其仍被规定进了现代法典中,这迄今仍导致混乱。连带债权关系被错误地当作连带债务关系的镜面规则。但是,对其功能、适用范围以及单个债权人的权利(得处分债权或仅得收取债权)并无统一意见。连带债权的规则并不符合其主要适用情形(即夫妻间或当事人间的联名账户)。因为认为每个债权人自身都享有请求履行的权利,债权的价值并不归属于任何一债权人,所以在支付不能的情况下会导致问题。法定连带债权的案型非常少见,连带债权在当下不具任何有意义的功能,应当被废除。如果多人欲共享债权,他们可以授予彼此代理权或对全体发生效力的处分债权的权利。
The classical Roman law to develop the joint claims system (or co-creditor system) is for the convenience of the majority to manage their claims. Roman law does not recognize the transfer of agents and claims. Only the joint and several claims system can allow each creditor to collect the claims, to sue the debtor or to dispose of the claims, and to all the creditors. The common law in Europe recognizes the assignment of agents and claims and therefore no longer requires any claims. However, it is still regulated in the modern code, which has so far led to confusion. The joint and several claims are mistakenly taken as the mirror rules of joint-liability relationship. However, there is no uniform opinion on its function, scope of application and the rights of individual creditors (the right to dispose of the debts or the receipt of the debts). The rules of a joint and several claims do not comply with its main application (that is, joint accounts between husband and wife or between parties). Because each creditor is considered entitled to performance on its own, the value of the claim is not vested in any one creditor, and can cause problems if the payment is not made. The legal joint and several claims of the case is very rare, the joint claims in the moment does not have any meaningful function, it should be abolished. If multiple people want to share their claims, they may grant each other the right to act as agents or to enforce the disposition of the claims against all.