侵权连带责任诉讼形态适用问题研究
Study on the Application of Litigation Form of Joint and Several Liability for Tort

连带责任价值在于将个别加害人不能清偿的风险由所有加害人承担，从而加强对受害人的保护。有关连带责任诉讼形态选择，存在适用固有必要共同诉讼、类似必要共同诉讼以及普通共同诉讼等诸多观点，司法实践中对于连带责任诉讼形态适用存在分歧。既有诉讼程序难以落实连带责任实体内容，其背后原因不仅包括我国民诉法的诉讼形态规定过于粗疏，同时受职权主义底色影响以及实体事实查清的驱动。实体法与程序法的脱节一定程度上限制了侵权责任法功能的发挥，连带责任诉讼形态的选择，应当厘清实体法与程序法之间的关系。在现实法律环境下，依旧采用绝对统一化形态不具有可操作性，植根于我国当下二元诉讼类型，应当考量连带责任性质及规范价值、当事人处分权等因素，采用相对化、类型化的解释路径。
The value of joint and several liability is that it enhances the protection of the victim by transferring the risk of insolvency of severally injured parties to all injured parties. With respect to the choice of litigation form of joint and several liability, there are opinions on the application of inherently necessary joint action, similarly necessary joint action and ordinary joint action, etc., and there are differences in the application of litigation form of joint and several liability in judicial practice. The reason why it is difficult to implement substantive content of joint and several liability in existing litigation procedures not only includes that the provisions on the forms of litigation in the Civil Procedure Law of our country are too careless, but also is affected by the background of the doctrine of authority and driven by the need to ascertain substantive facts. The disconnection between substantive law and procedural law has, to some extent, restricted the function of the law of tort. In the real legal environment, it is not operable to continue to adopt the absolute unified form of interpretation. As the interpretation is rooted in the current type of binary litigation in our country, a relative and typed interpretation path shall be adopted by considering the nature of joint and several liability, normative value, the right of disposal of the parties concerned and other factors.