讲座-连带责任-joint and several liability.doc

讲座题目：连带责任制度主讲人：郭晓霞课时：2重要知识点：连带责任概念；连带责任适用；连带责任的内、外部关系；连带责任的改革；按份责任。难点：连带责任的适用；连带责任的内外部关系。授课方法：采用多媒体教学，英文课件，中英文双语讲解，理论探讨与案例教学相结合。Rule of Joint and Several Liability1. Definition of Joint and Several Liability Joint and several liability is a form of liability that is used in civil cases where two or more people are found liable for damages. The winning plaintiff in such a case may collect the entire judgment from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full. In other words, if any of the defendants do not have enough money or assets to pay an equal share of the award, the other defendants must make up the difference.The rule is designed to fully compensate the party claiming damages without regard to the degree of the defendants wrongdoing. It also shifts the burden to the defendant to either find other codefendants or pay all the damages.2.Application of Joint and Several Liability Defendants in a civil suit can be held jointly and severally liable only if their concurrent acts brought about the harm to the plaintiff. The acts of the defendants do not have to be simultaneous: they must simply contribute to the same event.Generaly speaking, joint and several liability arises in the following situations: First, in joint tort cases ,where persons acting in concert tortiously cause harm to the plaintiff or if the actions of two or more actors legally cause indivisible harm; Second, in a contractual situation, where two or more persons are responsible for the same performence and default on their obligations, a nondefaulting party may hold any and all parties liable for damages resulting from the breach of performance. Third,if liability arrises by operation of law ,such as in cases involving partnership,agency, products liability etc.3.Contribution and IndemnityThe rule of joint and several liability holds that two or more defendants may be subject to liability for the same harm .This doesnt mean that a plaintiff to whom the defendants are jointly and severally liable for a single judgement can collect in full from each defendant.Rather,the plaintiff can collect the full amount only once, either all from anyone of the defendants or in part from all of them. A defendant who,under the rule of joint and several liability, pays more than a fair share of the total damages may be able to recover partial reimbursement from other defendant(s),who has paid less than a fair share,under the doctrine of contribution.In a few situation, one of codefendants may recover full reimbursement from another joint defendant under the doctrine of indemnity. Contribution is the partial reimbursement of one joint defendant by another joint defendant.The policy is distributing liability among the defendants in proportion to fault. But contribution is generally not permitted among intentional wrongdoers. Indemnity is a type of restitution designed to prevent unjust enrichment where one person has discharged liability for which another should have paid.The situtions inwhich indemnity may be granted include the cases where the indemnitees only derivatively or vicariously liable . For example,an employer is held liable for the torts of an employee,or a person is held liable for the torts of his agent.4. Joint and Several Liability Rule ReformThe application of the rule of joint and several liability is limited to joint torts,indivisible liability and contractually joint liability in the two civil codes of France and Germany.,while in America a reform aiming at modifying or abolishing of the rule has been going on. Forty-six of the fifty United states had a rule of joint and several liability at one point, but the majority have, in response to tort reform efforts, limited or abolished the rule.The issue is Whether joint and several liability provisions should be abolished and replaced with proportionate liability.Is it fair or unfair?Opponents of the reform contend that the elimination of the rule of joint and several liability would arbitrarily act to undercompensate people who had the misfortune to be hurt by more than one person,and the rule is fair and necessary.Fairness: An injured plaintiff deserves a full recovery.Eliminating joint and several liability would mean that the victims will not be fully compensated, simply because one or more additional wrongdoers are also responsible for the injury. When one wrongdoer ends up paying a disproportionate share of compensation to the injured victim, an issue of unfairness among the wrongdoers arises. However, it would be much more unjust if the victim, who was injured by all of the wrongdoers, would not receive the resources needed to rebuild his or her life. Joint and several liability only applies when a defendant is fully responsible for the harm.Basic tort law ensures that a defendant will only be held liable if his or her tortious behavior was the actual and proximate cause of the entire injury (i.e., the plaintiffs injury would not have occurred but for the defendants conduct and the defendants conduct is not too remote or minimal). An individual defendants responsibility does not decrease just because another wrongdoer was also an actual and proximate cause of the injury. Instead, each defendant who actually and proximately caused the plaintiffs injury is fully responsible for the entirety of the plaintiffs damage. Therefore, imposing the full measure of that damage on an individual defendant is not unfair, as they have already been found to be fully responsible for the harm. The defendants are in the best position to apportion damages amongst themselves. Once liability has been established and damages awarded, the defendants are free to litigate themselves to better devide liability. Joint and several liability permits the plaintiff to exit litigation at the earliest possible pointthereby avoiding the cost of continuing litigation.In truth, the joint and several liability doctrine most often results in a defendant being liable only for the individual harm it caused. While a plaintiff is entitled to recover the entire amount of damage from any one defendant under joint and several liability, that defendant can then sue to recover money back from other wrongdoers. This recovery is based on determining in the trial each wrongdoers proportion of fault and apportioning the responsibility for those damages accordingly. Consequently, each wrongdoer generally ends up paying only his or her comparative share of the harm. As is noted by opponents of the reform ,joint and several liability is a necessary tool used to ensure that plaintiffs recover all of their damages. Doing away with the doctrine will cut the costs of liable corporate defendants, but only at the expense of injured plaintiffs. Consequently, the doctrine of joint and several liability should be kept in place for the benefit of injured citizens.But supporters of the change note that the use of joint and several liability can lead to absurdly unfair results.Unfairness: Joint and several liability means you pay for the mistakes of others.Joint-and-several liability is a legal theory that allows one person to sue another for all damages claimed, even though others are much more at fault. The concept is designed to fully compensate the party claiming damages without regard to the degree of the defendants wrongdoing. It also shifts the burden to the defendant to either find other codefendants or pay all the damages. Joint and several liability leads to litigants search for deep pockets to sue, even though those defendants may only be remotely related to an incident.Under the rule of joint and several liability ,where a financially welthy defendant can be joined as a defendant,a plaintiffs expected damages increases.The rule of joint and several liability, sometimes called the deep pocket rule, makes each and every defendant in a tort lawsuit liable for the entire amount of the plaintiffs damages regardless of the defendants relative degrees of fault or responsibility. The effect of joint and several liability is to convert lawsuits into searches for financially viable defendants. This causes defendants to settle out of court for fear of being found fully liable for substantial judgments.5.The meaning of proportionate liabilityThe reform advocates claim that joint and several liability is unfair because it forces individual defendants to pay for harm caused by others and is used disproportionately against wealthy defendants (most often large corporations). They encourage lawmakers to adopt reasonable limits that apportion liability according to fault.It is suggested that joint and several liability be replaced with proportionate liability.Proportionate liability is the concept that a party is only responsible for the damages caused by his own negligence.It means that a defendants liability should be limited to a portion of the total damages corresponding to its share of the total fault.6.ConclusionOn one hand,the rule of joint and several liability is necessory for avoiding unfairly shifting to victims losses that were brought about by multiple wrongdoe