月度归档： 2025 年 12 月

The toll stations of Heilongjiang Expressway were all closed and resumed.

　　Xinhua News Agency, Harbin, February 24 (Reporter Wang Junbao) The reporter learned from the Transportation Department of Heilongjiang Province that as of 9: 00 a.m. on February 24, all the highway toll stations temporarily closed due to the epidemic in Heilongjiang Province were unblocked and resumed traffic.

　　According to reports, with the resumption of work and production in various places, the number of vehicles passing through highways in Heilongjiang Province, especially material transport trucks, has increased significantly in recent days. Since the implementation of the toll-free policy for highways in the province at 0: 00 on February 17, there have been about 35,000 free vehicles passing through highways every day.

　　Previously, affected by the epidemic, dozens of expressway toll stations were closed in Heilongjiang Province. In order to further ensure the smooth highway network, support the resumption of work and production, and maintain normal economic and social order, the transportation department of Heilongjiang Province lifted the closure of the above toll stations.

　　According to Yuntong Company of Jiaotou Group of Heilongjiang Province, 60 service areas of 74 expressways in the province have been opened. Every day, staff members disinfect the places in the service areas, and guide travelers to go to the toilet and refuel in an orderly manner during the peak traffic hours. Keep a distance and try to avoid people gathering.

Traffic facilities ｜ Need to face up to the business logic of the development of car networking

It has been 25 years since the first connected cars came out. In 1996, General Motors Corporation of the United States introduced the world’s first telematics system with the function of networked cars-OnStar, with the main purpose of safety and providing emergency assistance to accident vehicles. At first, the service only provided voice communication, and then gradually increased the sending of GPS position, remote vehicle diagnosis, navigation and so on.

Since the new century, more and more automobile manufacturers have begun to provide networked vehicle services. For example, in 2004, BMW provided online access based on mobile communication, which can check the weather and realize some office functions in the car. After 2008, Apple and Android gradually promoted the combination of mobile phones and vehicles, providing vehicles with a series of services from navigation, rescue to entertainment.

During this period, due to the demand of traffic safety, the transportation industry has gradually put forward some requirements for vehicle equipment, and some concepts such as V2I (vehicle to infrastructure), V2V (vehicle to vehicle communication), V2P (vehicle to pedestrian), V2C (vehicle to cloud communication) and V2X (vehicle to all objects communication) have appeared, so as to improve the safety of using vehicles in society.

In addition, in the context of the rise of the Internet of Things, vehicles themselves have become an integrated system of the Internet of Things. There are as many as 70 sets of systems, equipped with all kinds of testing equipment, to observe and control the operation of vehicles at all times. With the development of technology, the data and transmission mode of vehicles are more multidimensional, which makes vehicles more closely integrated with society and personal life. For example, the address book and schedule stored in the mobile phone can be shared with vehicle navigation; The priority demand of special vehicles is directly informed to all nearby vehicles and pedestrians on the way. The reasonable flow of data is making life easier, more comfortable and more predictable.

The downtown of Shanghai is full of traffic at night. The future car networking will be composed of cars, operating systems and communication services. The Paper reporter Zhou Pinglang

In recent years, the concept and application of connected cars have been very active in China, but it has also produced many confusing scenes. For example, the driver can clearly see the traffic lights at the intersection when he looks up, but in order to reflect the characteristics of car networking, the signal lights are connected to the display screen in the car intact, which makes the driver look down at the traffic lights in the car and ignore the road conditions. This is undoubtedly a dangerous situation.

Networked vehicles or car networking have great commercial prospects, and it is understandable that domestic manufacturers are eager to occupy a position. In this case, it is inevitable that there will be some exaggerated or even harmful traffic safety applications. However, if we want to develop in the long run, domestic manufacturers still need to carefully understand the driver’s needs and traffic safety knowledge, and analyze the real industry rules.

Three kinds of manufacturers developing when getting off the bus and networking.

Domestic literature on networked vehicles or vehicle networking often focuses on two communication modes: DSRC and C-V2X. The former is called dedicated short-range communications, and the latter is called Cellular Vehicle-to-Everything.

However, there is little discussion on the communication inside the vehicle and the on-board operation and control system. Some enterprises focus on the communication between OBU and RSU, even limited to navigation applications. These understandings will also affect the development of China’s car networking.

Nowadays, cars have complex networks, which can detect, sense, connect, reason and operate. Many cars have as many as 70 electronic control units (ECU), which receive more than 2,500 signals from vehicle chassis, powertrain, user interface and safety network. These basic technologies are the foundation of connected cars. It is impossible to discuss the Internet of Vehicles without the vehicle itself.

Taking navigation as an example, some vehicles can use all kinds of positioning system terminals installed by themselves, combined with the speed and angle sensors and the road conditions photographed by the camera, to know the exact location of the specific lane where the vehicle is located. Only by knowing the precise positioning of vehicles can vehicles be networked to solve various risks of road traffic safety, such as collision.

The Internet of Vehicles is inseparable from the capabilities and data of the vehicles themselves. Therefore, car dealers are one of the main participants in the car networking.

In addition, since 2008, Apple and Android have gradually enhanced in-vehicle applications in mobile phone operating systems. In recent years, the mobile phone operating system has been well connected with the vehicle control platform and exchanged data with the vehicle control platform, which has become a part of assisted driving. Take Tesla as an example. Tesla’s vehicles can control vehicle charging, vehicle air conditioning switch, sunroof switch, parking, etc. with their own operating system or applications installed on mobile phones. Even if the vehicle is tested or its performance is upgraded, it can be directly completed through the Internet, and it is an out-and-out networked vehicle.

The model pioneered by Tesla also enables many vehicle parts suppliers to embed some functions that can be communicated and controlled according to the vehicle control system or mobile phone operating system when developing products, so as to meet the market demand and increase versatility.

In the long run, will the automobile industry become a copy of the computer and mobile phone industry-operating system plus standard spare parts? It can be seen that those Internet giants with operating systems may be trying to control the right to speak in the Internet of Vehicles.

Jason Taylor， http://eve.solutions/

The Internet of Vehicles is a new industry in the world, and the ecosystem is gradually taking shape. But it may take more than ten years to have a stable market. Because in the travel industry, many new technologies are still developing, such as autonomous driving, and their processes are still affecting each other.

However, it can be expected that in the past ten years, the famous automobile manufacturers will still be the main participants. After all, whoever sells more cars will have the right to speak in the formulation of car networking standards.

However, car dealers will also encounter rivals that have never appeared before, namely mobile phone operating system developers or Internet platform companies. In the eyes of Internet giants such as Apple and Android, cars are just another kind of hardware, at most more complicated, and the core of car networking and even vehicles will be systems and applications. It is only a matter of time before Apple and Android get more involved in the automobile industry after they capture mobile phones, tablets, televisions, wearable devices and home control systems.

In the ecosystem of car networking, there is a place for communication manufacturers besides car dealers and operating system developers. The demand of networked vehicles for communication is safe, stable, reliable and fast, and the corresponding technology is difficult for car dealers and internet giants to achieve, or even if it is done, it is not cost-effective. Therefore, communication manufacturers are indispensable participants in the car networking market.

Above all, car manufacturers, internet companies and communication manufacturers are the three most important participants in the car networking market.

With the promotion of the Internet of Vehicles, the original automobile industry will gradually innovate. In the process of gradually establishing a new ecology, many enterprises that had nothing to do with vehicles can integrate into it and gain new business opportunities. The original ecology of the automobile industry may not be subverted, but it will also be integrated into the new ecology. Supporting enterprises that make hardware may be eliminated if they can’t actively integrate.

After all, in the future, people may want to use more connected vehicles with rich functions, just as smart phones gradually replace feature phones.

It is predicted that by 2025, the global shipments of connected vehicles will reach more than 77 million, and it will not take long for connected vehicles to become mainstream on the road. Networked vehicles have rich new functions, which make driving more comfortable and safe. This also means that the on-board operating system and application software will become more and more important, and the value brought by networking will gradually exceed the value of vehicle hardware itself.

Take OnStar as an example, the basic service fee is about $15 per month. Some analysts believe that drivers or insurance companies are willing to pay for remote vehicle diagnosis, anti-theft vehicles and entertainment. Just as the cumulative payment for various applications on mobile phones, such as watching videos, listening to music, reading books, etc., has gradually exceeded the price of mobile phone hardware, will there be such a trend in car networking?

When China gets off the Internet, it focuses its research and development on communication. This is related to the present situation of industrial competitiveness in China. In addition, most of the current purchasers are public sectors, and they don’t have a deep understanding of industry and technology trends, and their goals are too blind or too idealistic.

If we carefully understand the future trend of the Internet of Vehicles, we can realize that the investment in the projects of the Internet of Vehicles should be dispersed to different technical fields, so that the overall technical layout will be more balanced, and the three types of manufacturers and the main service target of the Internet of Vehicles-the technology in the field of traffic safety will be fully developed, and it should not be biased towards a certain type of technology. If no adjustment is made, China enterprises will not be able to enter the real field of car networking, and may only make large mobile phone terminals at most.

What data does the vehicle exchange with the outside?

At present, domestic reports on the Internet of Vehicles have made it difficult to distinguish between the Internet of Vehicles and large smart phones. This is related to the domestic industrial structure and the lack of research on traffic safety. If China still can’t invest enough valuable research on traffic safety, the development of car networking in China may be in the position of following manufacturers in developed countries for a long time.

Cars were not before and will never be smart phones with wheels. If there is a problem in the process of driving, it will not only be unable to restart like a mobile phone, but also cause serious accidents and even life-threatening. Therefore, in terms of security, stability, confidentiality and privacy, the standards of car networking are much higher than those of smart phones.

Modern cars contain complex and sensitive systems with a service life of at least 10 years, and some will continue to be used as second-hand cars. Ordinary smartphones usually have a service life of 2 to 3 years and are often regarded as disposable devices.

The hardware of the car should have redundancy and stability. The primary goal of vehicle manufacturing is not entertainment or comfort, but safety. In order to achieve safety, the design goal of various control systems and central processing systems of vehicles is to maintain long-term and stable performance under various working conditions, rather than pursuing high-performance computing capacity at that time.

Therefore, the vehicle we buy will not have much extra ability to handle frequent data exchange or external requests except for data processing and exchange of the preset functions of the vehicle. In other words, at present, there are many scenes set in China, and vehicles have no extra capacity to deal with them. Moreover, too much external communication and data processing, more or less appearing on the user interface, may cause the driver to be distracted and violate the safety principle. Even if the function may increase security, it should appear on the user interface carefully according to human requirements to avoid self-defeating. For example, the data exchange with the urban traffic control system on the road should be simply suggested to the driver by sound or image after processing; Or just when the driver is waiting for the red light to be free, tell him how many seconds to wait, instead of giving the timing of the front signal light while driving.

Information exchange between vehicles and the outside has always existed and is necessary. In the era when there is no data exchange ability, vehicles exchange information with the outside through headlights and horns, which can convey very limited information, such as attention, left turn and right turn, which takes a long time to convey and sometimes leads to misunderstanding. Now, the technology has developed to the ability to exchange data between vehicles and the outside.

Then, the question is, what data should the vehicle and the outside exchange?

This first needs to be understood from the driver’s needs. Buying a car is often for the sake of efficiency first. It is faster to drive children to school and commute by themselves than to walk by bus or bike, which can make the family sleep more. Secondly, comfort, such as avoiding all kinds of transfer troubles. However, the premise is safety, which is the most important factor for car owners to consider. The same is true for the demand for data exchange between vehicles and the outside. The first thing that needs to be exchanged is safety data, the second is efficiency, and the last is comfort-related data, similar to listening to songs and chasing dramas. Therefore, there are three kinds of data exchange and application functions to be realized by the Internet of Vehicles: traffic safety, travel efficiency and entertainment, and the importance is from high to low, and the requirements for real-time communication are also from high to low. As shown in the figure below.

Vehicles are huge and complex systems. For vehicles, the function of vehicle networking is not an independent or plug-in system, but a part of advanced driver-assistance systems (ADAS). The development of vehicles has always been accompanied by the development of assisted driving system. Traditional auxiliary systems include steering wheel booster which is convenient for the driver to hit the steering wheel, and anti-lock braking system (ABS) which prevents the vehicle from being uncontrollable due to tire locking. Modern vehicles are equipped with more devices to assist drivers in driving, such as lane keeping assistance system with cameras to assist drivers not to deviate from the lane, and front anti-rear-end collision warning system with radar to detect the distance and speed of the preceding vehicle, which can help drivers to drive easily.

The function of car networking is to add more information to the existing driving assistance function. For example, the speed and position data of the front, rear, left and right vehicles, knowing the road alignment and roadside edge conditions, and knowing whether there is a construction work area or weather conditions ahead, these new data, combined with the original data of the auxiliary driving system, will make the vehicles stronger and safer. Even self-driving vehicles also need driving assistance, and the information provided by the Internet of Vehicles can also improve the safety of self-driving.

The essence of the Internet of Vehicles is to improve the assisted driving ability of vehicles, whether it is manual driving or automatic driving. The vehicle networking system is inseparable from the system of the vehicle itself. If the plug-in vehicle terminal of Internet of Vehicles can’t be closely integrated with the vehicle system itself, but is only a large mobile phone screen, it can only realize entertainment function and part of efficiency function at most, so it can’t be called real Internet of Vehicles, and it can’t be regarded as a vehicle driving assistance system.

For these plug-in car networking systems, the communication delay requirements become irrelevant. Because the requirement of low communication delay in vehicle networking is aimed at the requirement of data exchange between vehicle systems. For example, some car networking applications with collision warning require communication delay of 0.1 seconds or less, so that vehicles can react automatically and act immediately to avoid collision. The plug-in system is difficult to combine with the vehicle system and cannot remind the vehicle control system to act. If this information is provided to the driver, and the communication delay of 0.01 second, 0.1 second or even 1 second is not much different from the driver’s reaction ability, then it is meaningless to discuss whether the communication of vehicle networking is DSRC or C-V2X, or the difference between 4G and 5G mobile communication.

The Internet of Vehicles should be the first part of the assisted driving system. On this basis, it can be used as a platform for vehicles to exchange data with the outside. If it is a large mobile phone terminal function that plays music and watches videos, or gives drivers a lot of external information such as speed limit and weather for viewing or choosing, it is actually not the core content of the Internet of Vehicles. Few people are willing to spend tens of thousands of dollars to buy a large mobile phone terminal and install it in the car to catch up with the drama. This will not bring benefits to vehicle sales.

After all, the significance of car networking to car manufacturers is the increase in vehicle sales and profits, and the significance to drivers lies in safety. This is the real reason why all kinds of manufacturers and public departments spend money to research and develop the Internet of Vehicles.

We must abandon words and develop the Internet of Vehicles in a down-to-earth manner.

Since the Internet of Vehicles is a part of the assisted driving system, the development focus of the Internet of Vehicles technology is of course vehicles: improving the cost performance of vehicles and forming a more profitable business model.

This is the same as other new technologies emerging in the transportation industry in recent years. The business models behind autonomous driving, car sharing, and easy service are all for profit. Of course, for society, the new business model will also bring benefits about safety or efficiency.

At present, the commercial meaning of new terms in the transportation industry, such as vehicle-road coordination, remote sensing intelligent driving, intelligent network connection and high-precision map, is often ignored in the corresponding discussion, and its connotation and extension are expanded at will through imagination, forming a lot of specious words.

For example, there are often articles that say, "In a block with an Internet of Vehicles network, pedestrians or other targets are connected to the traffic control system, and the information on the road will share the location information with the approaching vehicles through the cloud. After the vehicles perceive it, they will take the initiative to avoid it." If you think about it carefully, no matter from the technical or commercial point of view, this kind of formulation is confusing.

Technically speaking, first, will there be such a powerful neighborhood? What is the accuracy rate of such a neighborhood with accurate information? Will there be worse results if it is inaccurate? Second, how much information should be transmitted to the vehicle, whether the vehicle has the ability to receive or process this information, and whether it will cause an accident due to system crash? Third, after the vehicle senses it, it will take the initiative to avoid it. Who does this initiative mean, stepping on the brakes to avoid it, the driver or the vehicle assisted driving system? From a commercial point of view, what is the cost of building such a block with accurate information? Who will receive the money? And so on and so forth.

The new technology recognized by the market is either to reduce costs or improve efficiency, or both. The same is true for the Internet of Vehicles. It is not very useful to emphasize the advanced or novel technology. Whether it is the cloud or the coordination of vehicles and roads, if it does not conform to the rules of the market economy, it will be abandoned sooner or later. And transferring part of the cost from the end-user driver to the public sector, hoping that the road or city management department will bear the cost of car networking promotion, which actually secretly cuts away the money of medical care, education and old-age care for ordinary people. Is this good or bad for us?

The development of car networking industry should follow the principle of market economy. Simply put, it means low cost, users benefit and strong competitiveness. From the previous analysis, the Internet of Vehicles is an industry that is beneficial to safety, efficiency and comfort, and it is an emerging industry that conforms to the principles of market economy. There is a consensus on the corresponding bright future, and the problem lies in the path of development. If the path goes wrong, the industry will still develop, and we will fall behind.

The above-mentioned confusing scenes often appear in the press releases of manufacturers or the words of industry researchers, and often become the reasons for project establishment. However, it can’t be justified when it is true. The speaker often slips from the concept of car networking to the field of collaborative intelligent transportation, and then turns to the concept of autonomous driving. The explanation is erratic and can only be made up by words. Although words are beautiful, they are of no help to industry.

With the advantages of huge scale and complete types in manufacturing industry and logistics industry, as well as the advantages of related systems, the environment for developing car networking in China is very superior. However, in the development planning of car networking in some regions and industrial associations in China, there are often ambiguous new words, big words and function words, which express the idealized scene setting-assuming that there is data, the data transmission is stable, reliable and credible; Suppose you are capable and powerful but you don’t know who the subject is. You know, the Internet of Vehicles has to study the degree of "stability, reliability and credibility", rather than taking these contents that should be the focus of promotion as existing assumptions. This arbitrary setting discards the real content that should be studied in the Internet of Vehicles, and also makes the path development too arbitrary. As long as language processing, no matter what kind of scene, can become a part of the car networking industry and be supported, so the bubble gradually accumulates.

China’s car networking industry should be promoted by three kinds of car networking related manufacturers, and the details of vehicles, internet and communication are indispensable. The relevant public departments, such as laws and roads, should make demands on laws, privacy, public attitudes and road safety to guide and assist manufacturers to make progress.

Like manufacturers, the public sector is an integral part of the industry, but it is not the protagonist, and it should not be the main buyer of the development of the car networking industry. Buyers can only be drivers, transportation companies and other social institutions with travel needs. If the public sector gives corresponding support, mainly to pay for projects, rather than strengthening rules, protecting public interests and purchasing public services, it will mislead the development direction of the Internet of Vehicles, making it difficult for manufacturers to get rid of public funds, or even the path deviation.

The long-term existence of OnStar, the first application of the Internet of Vehicles, proves that ordinary drivers are the buyers that the Internet of Vehicles should pay attention to. Under the public sector’s capital investment, the corresponding situation should not be worse than no investment.

As a manufacturing country with a large population, China’s public sector should invest more rationally and intelligently to encourage industrial development. Even if investment or subsidies, should also be based on the sense of gain of the people as an indicator of evaluation and measurement, such as the following:

First, in terms of public services, a demonstration of the application of car networking is formed, which aims at the second type of application of car networking: efficiency, and measures the application of car networking with the final efficiency progress. Public transport, urban freight transport, municipal vehicles, official vehicles and special vehicles in China should cooperate with the application and promotion of vehicle networking manufacturers to improve their service capabilities. For example, paying for ambulances and fire engines to arrive at the scene quickly, taking the efficiency of response and arrival as the payment condition, and really promoting the industry.

Second, encourage close integration with car networking enterprises, and form car networking applications in closed sites or fixed lines such as parking lots, bus stops, office parks, industrial parks, etc. This still belongs to the efficiency category, and use car networking technology to improve the safety and efficiency of closed sites. However, before these applications are implemented, the objectives and evaluation methods should be clear. For example, improve the punctuality rate of buses, promise the reliability of bus services, and pay service fees according to punctuality.

Third, we should select some vehicle networking applications, such as weather service on expressways, early warning in construction areas, giving priority to signals of special vehicles at intersections, and promoting road safety and efficiency, and make practical application results in some cities and expressways.

tag

Regardless of legislation or technology research and development, Europe is several years ahead of China in the field of car networking. This is related to the advantages of traditional industries in Europe. However, China still has the opportunity to catch up, and it also has certain industrial advantages, such as communication and Internet services. However, the operation of enterprises can only be successful if they truly conform to the laws of the market and make technologies that make people truly feel gained. In the car networking industry, commercial success means technological leadership. After all, the growth of car sales and service profits means the sustainable development of car networking.

However, the situation with words and the creation of new terms as the core should not be encouraged, and it should not be allowed to become an obstacle to the development of China’s car networking.

(Author Guo Min is a traffic engineer in Hangzhou)

International Film Express： Disney will lay off 32,000 people, and Yamashita Tomohisa will star in Hollywood movies.

1. "Hannibal" mads mikkelsen will star in "Where are the Fantastic Animals 3"

According to foreign media reports, Warner recently confirmed that mads mikkelsen will play Grindelwald in Where are the Fantastic Animals 3.

In the Fantastic Beasts and Where to Find Them series, the role of Grindelwald had been played by Johnny Depp. After he sued The Sun for losing the lawsuit, Warner asked him to quit the series. Warner also revealed that he would look for another actor to play Grindelwald. Later, the media reported that Micol Sen was in talks to star, and he himself said that he was waiting for a call, and now it is confirmed. At present, where are the magical animals 3 is scheduled to be released in North America on July 15th, 2022.

2. The copyright of "Daredevil" returned to Marvel Pictures.

According to foreign media reports, the copyright of "Brave Man" has officially returned to Marvel Pictures. It is reported that Netflix made a series of Marvel Comics TV series from 2015 to 2019, including Brave Man, Punisher, Defenders Union and so on. According to the contract between Netflix and Marvel Comics, Marvel Pictures can’t use these characters or have any development actions for two years after the series was cancelled. But now, two years have passed since the end of "Brave Man", and the copyright of this role naturally returned to Marvel Comics.

3. Disney will lay off 32,000 people, involving real-life business and film sector.

According to the documents of the Securities and Exchange Commission of the United States, the Walt Disney Company of the United States plans to lay off 32,000 people by the end of March 2021, as the COVID-19 epidemic continues to hit its parks and resorts business.

It is reported that Disney has about 223,000 employees. In September, the company announced that it planned to lay off about 28,000 people. This time, the number of layoffs is 4,000 more than that in September. As a media and entertainment giant, Disney may also be forced to cancel dividends, reduce or cancel contributions to pensions and retirement medical plans in the future. In addition, Disney will probably cut investment in TV and film production, and take vacations or fire more employees.

4. Tom Holland starred in the new film "Sherry" and exposed the stills.

It is reported that the new film "Sherry" starring "Little Spider" Tom Holland has recently exposed stills. The film is based on the best-selling novel of the same name, with Tom Hollander as the leading role and Russo brothers as the director of "Reunion 4". The film tells the story of a man from a wealthy family who had a good life. After that, he left his hometown and became a military doctor in Iraq. When he returned to his hometown, he suffered from post-traumatic stress disorder. After that, he took drugs and was heavily in debt, and even robbed 11 banks. The film will be released in cinemas on February 26th next year, and will land on Apple TV+ on March 12th.

5, "Baby Boss 2" exposure trailer

The animated film Baby Boss 2 recently exposed a trailer. The film was set many years later, and Tim, a full-time dad, and Ted, with deep pockets, reunited again. They were surprised to find that Tina, a newborn baby at home, was actually a top agent from Baby Group. Under Tina’s leadership, they returned to childhood again to help her find out the dark secrets behind the mysterious organization …

It is reported that the first The Boss Baby was released in March 2017 and released by 20th Century Fox. Although the film received mixed reviews, it was a great success at the box office, earning 527 million US dollars worldwide. At present, the second film is scheduled to be released in North America in March next year.

6. Yamashita Tomohisa will star in the Hollywood movie The Man from Toronto.

According to Japanese media reports, Yamashita Tomohisa, an actor who quit Genese’s office at the end of October, will star in The Man from Toronto, a Hollywood comedy action film starring kevin hart, the hero of Brave Game. Recently, kevin hart also shared photos with Yamashita Tomohisa and Woody Haeerlson on social networking sites.

It is reported that the film is currently being filmed in Ontario, Canada. kevin hart and the staff and other related people will share the status of the studio on social networking sites, and the film photographer also posted photos of Yamashita Tomohisa holding a Japanese knife. At present, the specific information of Yamashita Tomohisa’s role has not been made public, and the film is expected to be released in North America next year.

7. Kôji Yakusho and Masami Nagasawa starred in the "Beautiful World" exposure trailer.

According to Japanese media reports, the new film "Beautiful World" directed by Miwa Nishikawa and starring Kôji Yakusho, Masami Nagasawa, Nakano Taiga and Isao Hashizume has exposed a brand-new trailer. The film is adapted from Sasaki Takazo’s novel "Identity Account", which is based on a real man and tells the story of his returning to society and working hard after spending most of his life in prison.

On the basis of the original novel, director Miwa Nishikawa changed the story stage to the present 35 years later, and made a detailed investigation of the materials and adapted it into a film. At present, The Beautiful World is scheduled to be released in Japan on February 11th, 2021.

8. Han Ying Weekly Box Office: "Neighbor" won the championship.

According to Korean media reports, the weekly box office list of Korean movies was released. The movie Neighbor starring JUNG WOO, Dal-su Oh and Jin Xiyuan won the box office championship in the first week of its release. The movie mobilized 122,455 viewers in three days last weekend, beating the movie Tomb Raider in the same schedule and winning the first weekend box office championship after its release. In addition, the movie Tomb Robber starring Li Dixun, Woojin Jo and Shin Hye sun ranked second, while the American movies Escape and Happy Chopping Man ranked third and fourth respectively.

— THE

Strengthen confidence and make full efforts to promote the overall improvement of economic operation-a scan of economic and social development in various parts of the country in December

　　Xinhua News Agency, Beijing, December 31st Title: Strengthen confidence and go all out to promote the overall improvement of economic operation — — Scanning the economic and social development of all parts of the country in December

　　Xinhua news agency reporter

　　At the end of the year, it is the key window period to expand the economic stabilization and upward trend. All localities have earnestly implemented the spirit of the Central Economic Work Conference, better coordinated epidemic prevention and control and economic and social development, strengthened confidence in economic work, accelerated the formation of joint efforts to promote high-quality development, and promoted the overall improvement of economic operation.

　　Optimize epidemic prevention and control measures according to the situation, speed up the resumption of work and stabilize the economic market.

　　Recently, Beijing has continued to promote enterprises to resume work and production, taking various measures to stabilize the economy and promote consumption. The passenger flow in major business districts has increased, and the "fireworks" has gradually returned. The picture shows tourists playing at Huaxi Live in Wukesong, Beijing (photo taken on December 25). Xinhua News Agency reporter Zhang Chenlin photo

　　Recently, with the optimization and adjustment of epidemic prevention and control measures, all localities and departments have solidly promoted the resumption of work and production, and promoted the economy to further stabilize and improve.

　　The General Office of Chongqing Municipal Government recently issued "Twelve Measures to Support the Development of Individual Industrial and Commercial Households and Small and Medium-sized Enterprises", focusing on relieving the pressure of loan repayment and capital turnover faced by individual industrial and commercial households and small and medium-sized enterprises, helping them to get out of the production and operation difficulties to the maximum extent and helping the economy to stabilize and move up.

　　Mr. Wang runs a building materials store in Liangjiang New District, Chongqing. Due to the epidemic, his store was temporarily closed. "The store is closed, but the monthly loan interest has to be several thousand." After understanding the situation, Liangjiang Branch of Chongqing Bank timely reduced or exempted it according to the policy to help it tide over the difficulties. "Interest relief is really ‘ Send charcoal in the snow ’ It has added confidence to our development. " At present, Mr. Wang’s building materials store has resumed business and its operation has returned to the right track.

　　Over the past month or so, banks in Chongqing Liangjiang New Area have extended the loan repayment for 718 small and medium-sized enterprises and individual industrial and commercial households, involving an amount of over 620 million yuan. Bishan District launched the "Easy Credit Loan for Individual Industrial and Commercial Households" for 52,000 individual industrial and commercial households, with a matching fund pool of 100 million yuan. Individual industrial and commercial households can easily apply for loans online, lowering the financing threshold and improving the loan efficiency.

　　Recently, Gansu Province organized a special meeting, emphasizing the urgency to speed up the resumption of work and production, promptly unblock the obstruction links of supply chain and sales chain, and ensure that enterprises can release production capacity at full capacity.

　　Gong Hongquan, general manager of Gansu Lanzhou Chemical Technology Co., Ltd., deeply felt the changes brought about by speeding up the resumption of work and production. Like many inland enterprises in the west, the raw materials and customers of this enterprise are "two ends out". After the release of the "New Ten Articles" on epidemic prevention and control, the logistics efficiency has been accelerated, and the production and sales performance of enterprises have been significantly improved. So far this year, the output value of enterprises has exceeded 80 million yuan.

　　At the end of the year, all localities seized the time and mustered up their enthusiasm, effectively restored their economic vitality, and continued to boost market confidence.

　　In the Lingang New Area of China (Shanghai) Pilot Free Trade Zone, a series of investment projects are being stepped up, and the confidence and determination of foreign-funded enterprises to invest in Lingang New Area are more determined.

　　On December 21st, Maersk Group signed a land transfer contract with the management committee of Lingang New Area, and Maersk’s first intelligent and green integrated logistics flagship warehouse in China officially settled in Lingang New Area, with an estimated total investment of over 1 billion yuan. "The special location advantages and policy support of Lingang New Area can help Maersk build a full-chain smart supply chain product." Wu Bingqing, president of Maersk Greater China, said that Maersk will continue to increase its investment in China and further develop its logistics and service business.

　　With the continuous optimization of epidemic prevention and control policies, personnel flow, business activities and express logistics have gradually recovered. According to the data of the State Post Bureau, since December, the postal express delivery industry has accelerated its recovery and ushered in a new round of business peak. At present, the national single-day collection volume has remained above 360 million pieces.

　　At Yiwu West Railway Station, trains loaded with containers are ready to go, and the "steel camel team" will set off across Eurasia. "As of December 23rd, this year ‘ Yixin Europe ’ A total of 1,561 trains were operated on the Yiwu platform of China-Europe trains, with a year-on-year increase of 23.8%, which played a positive role in ensuring the smooth flow of foreign trade logistics supply chain. " Feng Xubin, chairman of Yiwu Tianmeng Industrial Investment Co., Ltd., the operator of the train, said that at present, "Yixin Europe" has radiated to more than 50 countries and 160 cities in Eurasia.

　　Recently, Wang Gensheng, who runs hardware tools in Yiwu International Trade City, found that there are more and more foreign businessmen in the market. "In December, I have received six or seven buyers from Pakistan, Yemen, Jordan and other countries. Among them, there are old friends and new faces." Wang Gensheng was very happy.

　　"Spring River Plumbing Duck Prophet". As the "wind vane" and "barometer" of global small commodity trade, Yiwu, the "world supermarket", has collected more than 2.1 million kinds of commodities and has trade relations with more than 230 countries and regions around the world, so it can always take the lead in sensing the subtle changes in the market. At present, there are more than 10,000 resident foreign businessmen in Yiwu, which has recovered to the level of 70% before the epidemic.

　　Promote consumption, stabilize investment, and take measures to accumulate new kinetic energy for high-quality development.

　　On December 15th, in Liaocheng section of Jinan-Zhengzhou high-speed railway in Shandong Province, the staff of China Railway 10th Bureau were laying tracks. On the same day, the groundbreaking ceremony for track laying of Ji (Nan) Zheng (Zhou) high-speed railway (Shandong section) was held in Liaocheng. With the first pair of 500-meter-long rails slowly entering the trough, it marked the start of comprehensive track laying construction of Ji-Zheng high-speed railway (Shandong section). Xinhua News Agency reporter Guo Xulei photo

　　See Longmen Grottoes and visit Luoyang National Heritage Park in Sui and Tang Dynasties … … Recently, in Luoyang, the ancient capital, a newly launched activity of "Walking between Heluo and Changyou Luoyang City" was warmly welcomed. The activity started less than half a month ago, and only "‘ The most Luoyang ’ A product of Huimin Experience Tour sold 45,700 copies.

　　"It is quite cost-effective to visit the scenic spots in the city without spending 100 yuan." Ms. Hu, a citizen of Luoyang, said that she not only bought several copies herself, but also recommended them to her friends.

　　Consumption is the final demand, a key link and an important engine to smooth the domestic circulation, and has a lasting driving force for the economy. The Central Economic Work Conference pointed out that it is necessary to give priority to restoring and expanding consumption.

　　In December, the Outline of the Strategic Plan for Expanding Domestic Demand (2022-2035) issued by the Central Committee of the Communist Party of China and the State Council was released, which made a long-term plan for implementing the strategy of expanding domestic demand; Many places have announced the issuance of consumer vouchers, covering many fields such as automobiles, restaurants and sports; Hainan launches "Hainan Island Duty Free New Year Carnival Season" … …

　　From the central government to the local government, from focusing on the long-term to grasping the present, a series of policy measures focus on enhancing consumption capacity, improving consumption conditions, and innovating consumption scenarios, which frequently blows warm air to the consumer market.

　　Investment is one of the "Troika" that drives the economy. Accelerating the construction of major projects is an important support for expanding domestic demand and stabilizing the economic market.

　　At present, more than 2,700 projects supported by 739.9 billion yuan of financial instruments have all started construction, and major projects that meet the winter construction conditions have been stepped up, which is forming more physical workload.

　　Near the end of the year, the Anle estuary on the right bank of the Han River, about 5 kilometers downstream of Danjiangkou Reservoir, is still busy, with bulldozers, excavators and muck trucks roaring back and forth.

　　This is the construction site of the Han River Diversion Project. The feasibility study approved a major project with a static total investment of 58.235 billion yuan, which was officially started in July this year. After completion and operation, it will connect the Three Gorges Project with the South-to-North Water Transfer Project, and further open the Yangtze River to the north.

　　"The exit water conveyance tunnel has the construction conditions for entering the tunnel, which means that the Yangtze River Diversion Project is about to enter a new stage of the main project construction." Yu Yihua, director of Danjiangkou Design Representative Office of Yangtze River Survey Planning and Design Research Co., Ltd., said.

　　The development of economy depends not only on its size and scale, but also on its strong scientific and technological strength. The Central Economic Work Conference called for "paying close attention to the transformation and upgrading of traditional industries and the cultivation and growth of strategic emerging industries" and "highlighting the main position of scientific and technological innovation of enterprises".

　　From 3D printing to intelligent robots, from 5G technology to cloud computing, from the Internet of Things to artificial intelligence … … New industries, new formats and new models that are being cultivated at an accelerated pace are becoming the new engines of economic development.

　　In Shenzhen, Guangdong, Xinwangda Electric Vehicle Battery Co., Ltd. recently announced that the battery products with high energy density that the company has mass-produced can have a cruising range of more than 800 kilometers.

　　Power battery is one of the core components of new energy vehicles. At present, this company has obtained orders from Volvo, Renault Nissan and other companies, and entered the German Volkswagen supplier system.

　　Yu Xiquan, director of Shenzhen Bureau of Industry and Information Technology, said that Shenzhen has built a closed loop of the core technology chain of "Three Electricity" for new energy vehicles, covering all aspects of R&D and manufacturing of new energy vehicles such as battery modules, power batteries, precision structural parts and motor electronic control.

　　In Hefei, Anhui Province, Tingjun Medical, which has settled in the Silicon Valley of HKUST for more than two years, has not only achieved a substantial increase in revenue this year, but also developed and manufactured a new type of dental clinical processing equipment equipped with robotic arms and integrated Internet of Things technology, breaking the technological monopoly of foreign manufacturers.

　　On December 22nd, the Silicon Valley Guidance Fund of HKUST with a total scale of 30 billion yuan was registered, with the initial registration scale of 1.5 billion yuan, focusing on small and medium-sized micro-technology enterprises with outstanding technological innovation ability established in "Silicon Valley of HKUST".

　　"Getting through innovation chain and the industrial chain is inseparable from a good ecological environment for innovation and entrepreneurship." Dai Jun, founder and chairman of Tingjun Medical, said that the "Silicon Valley of HKUST", which has gathered a group of outstanding science and technology enterprises, has a lot of innovative resources, and will attract more outstanding global talents in the future and become a world-class source of technological innovation.

　　Grasp the bottom line of people’s livelihood and fully protect people’s production and life.

　　On December 23rd, the centralized commencement ceremony of the post-earthquake recovery and reconstruction project in Luding, Ganzi Tibetan Autonomous Prefecture, Sichuan Province was held in Xiakuiwu Village, Dewei Town, Luding County. Xinhua News Agency (photo by Luo Chukai)

　　The Central Economic Work Conference emphasized that social policies should firmly adhere to the bottom line of people’s livelihood. The more we face the pressure challenge, the more we should pay attention to ensuring and improving people’s livelihood, "pocket" the most difficult groups and "guarantee" the most basic life.

　　Not long ago, Zhang Guangjin, a villager who lives in Chunyanggou Village, Shankou Town, Daiyue District, Tai ‘an City, Shandong Province, ushered in good news. He had a "new errand" at his doorstep — — Rural public welfare posts, responsible for the protection of surrounding forests.

　　At the same time, Zhang Lili, who lives in the town, also solved the urgent need through public welfare posts in the town. Through recruitment, she has experience in using computer software, and was assigned to work in Shankou Town Veterans Service Station, which made Zhang Lili, who has been unemployed for nearly a year, feel warm.

　　Employment is the biggest livelihood, affecting thousands of households.

　　Recently, all localities have taken stable employment as the focus of people’s livelihood security work and further expanded employment space. Shandong makes every effort to expand the scale of urban and rural employment, develop urban and rural public welfare posts, and solve the employment problems of laid-off workers and difficult groups; Chongqing continues to help enterprises stabilize their posts and help stabilize jobs through "lowering, slowing down, returning and supplementing"; Shanxi has intensified the development of market-oriented and socialized employment channels, made good use of all kinds of policy posts, and continued to carry out employment assistance for key groups … …

　　Focusing on the people’s "urgent difficulties and worries", we should start from strengthening the basic living security of the people in need.

　　Sichuan has further deepened the "streamline administration, delegate power, strengthen regulation and improve services" reform in the field of social assistance, made great efforts to solve the problems of complicated examination and confirmation procedures, too long time and inconvenient work for the masses, and earnestly enhanced the sense of acquisition and happiness of the people in need. "It used to take a month or two to apply for the minimum living allowance, but now it takes more than 10 days to get the money." Liu Fujin, a villager from Diaolou Village, Guanzi Town, Dachuan District, Dazhou City, Sichuan Province, who is suffering from diseases, said.

　　At the same time, all localities have actively strengthened measures to ensure the supply and price stability of key livelihood commodities to meet the needs of the people.

　　Cold is the most important time to ask for warmth. In order to escort the planting of fruits and vegetables in winter and ensure the supply of fruits and vegetables during the "two festivals", State Grid Zhejiang Taizhou luqiao district Power Supply Company organized the Red Boat Communist party member Service Team to conduct safety inspections and hidden dangers investigation in the intelligent vegetable greenhouses in the whole region.

　　"We focus on conducting a comprehensive inspection of electrical equipment such as greenhouse lighting, pumping, sprinkler irrigation, heaters, etc., and guide farmers to scientifically install and use electrical equipment, timely solve the problem of electricity consumption in vegetable greenhouses, and ensure stable production and income increase of agricultural and sideline products." Liu Bin, a member of the Red Boat Communist party member Service Team, said.

　　In the cold winter, the breath becomes frosty. However, at the site of Heidaigou open-pit coal mine of Guoneng Zhungeer Banner, Erdos City, Inner Mongolia, the machines are roaring and in full swing, and more than 100 large-scale main mining equipments are working at full capacity. At present, the daily production of commercial coal is about 80,000 tons. "We do a good job in the investigation and standardized management of hidden dangers of cold and freezing, strictly guard against seasonal safety risks, and go all out to ensure that energy supply is foolproof at the end of the year and the beginning of the year." Li Fang, secretary of the Party branch of the Coal Mine Dispatching Command Center, said.

　　At the end of recent years, all localities have implemented the central arrangements and made every effort to ensure food security and help rural revitalization.

　　"This year is a bumper harvest year. I planted 180 mu of soybeans with a yield of 430 kg per mu and 430 mu of corn with a yield of 2,300 kg per mu." In Taiping Village, Xiaochengzi Town, Baoqing County, Heilongjiang Province, Zhang Zonghai, secretary of the Party branch of the village, who is checking the soybean storage situation in his warehouse, said.

　　This year’s central rural work conference made important arrangements to gradually build all permanent basic farmland into high-standard farmland. Focusing on next year, Heilongjiang Province will continue to implement the task of high-standard farmland construction, and strive to achieve "20 consecutive harvests" in grain production through in-depth implementation of the strategy of "storing grain on the ground and storing grain in technology".

　　Meng Wei, spokesman of the National Development and Reform Commission, said that with the package of policies and measures to stabilize the economy concentrated in the fourth quarter, industrial growth momentum and investment confidence will continue to increase. Looking forward to the whole year, the foundation for stability and improvement has been continuously consolidated.

What is the quality of Gree central air conditioning？ Advantages and disadvantages of Gree central air conditioning are introduced [detailed explanation]

"Good air conditioning, made by Gree" is a well-known advertising slogan. As a domestic air conditioning brand, Gree air conditioning has always been trusted and supported by everyone. Compared with Gree household air-conditioning, the quality of central air-conditioning in Gree Hotel, what advantages it has won many favors, and what shortcomings need further improvement and attention. Here is a glimpse of the advantages and disadvantages of central air-conditioning in Gree Hotel.

gree central air conditioning

Low initial investment Good quality and low price are the common demands of consumers. Due to the long development period and core technology of products, the prices of imported central air conditioners are generally higher than those of domestic brands, while the initial investment of Gree central air conditioners is low. Take Gree inverter central air conditioners as an example, the total quotation is less than 30,000, while the quotation of the same imported brands is around 40,000.

Good refrigeration effect Gree variable frequency central air conditioner has good refrigeration effect and comfortable use environment because its compressor will not be turned on frequently, and it will gradually reach the set temperature and maintain low-frequency operation in balance with the loss of cooling capacity, and keep the room temperature constant without the problem of hot and cold.

Save energy and electricity The central air conditioning of Gree Hotel adopts a unique control mode, which can be controlled both centrally and independently. The unique control mode makes the indoor unit without work not consume electricity, thus effectively reducing the power consumption and achieving the purpose of saving electricity and energy. 　　

There are no strict installation specifications. There is no authoritative installation standard in the domestic central air-conditioning market, which also leads to the lack of strict and unified Code for Installation of Central Air-conditioning in Gree Hotel, which makes the installed central air-conditioning in Gree Hotel have frequent problems and will also affect the service quality of the hotel. The irregular installation also shortens the service life of Gree central air conditioning.

Poor after-sales maintenance system According to statistics, the service life of Gree central air-conditioning is generally 8-10 years, while the service life of imported central air-conditioning is more than 15 years, and all imported brands have professional after-sales maintenance, while the national brands dominated by Gree have not yet perfected a unified after-sales and regular maintenance system, which also leads some hotels to give up Gree air-conditioning in the long run.

In order to have stronger competitiveness and occupy a more favorable position in the field of hotel central air conditioning, Gree brand must overcome these factors, such as unstable products, improper installation and inadequate maintenance. While solving the shortcomings, we still need to innovate and practice, and gradually move towards the international stage.

To sum up, the advantages and disadvantages of central air conditioning in Gree Hotel coexist. As far as the current situation is concerned, imported central air-conditioning brands still occupy a dominant position, because consumers are more willing to exchange a little more budget for more peace of mind and comfort, so Gree brand should retain consumers’ hearts with better technology and services on the advantage of high cost performance.

Why the sales volume of ET in Xingtu Xingyuan Era is not as good as that in the ideal L6 intellectual community R7？

On December 15th, Chery’s high-end brand Xingtu Automobile pushed Xingtu Xingjiyuan ET extended-range four-wheel drive model again. This time, the car has launched three models, and the price range is 239,800-289,800 yuan. As Chery’s up-and-coming Star Road car, it can be said that Chery has high hopes for this, but its performance in the sales part of the market is mediocre.

Take the car Star Road Star Era ET as an example. According to the sales data in November, the wholesale sales volume of this car was 2,552, and there was no high sales volume in the next few months. We can’t say that this car is not easy to sell, but it can only be said that it is just so-so. However, compared with the ideal L6 of the competing model and the intelligent R7 of the "cousin" model, the status is highlighted, and it can be said that it is a cloud of mud.

Relevant data show that from December 2 to December 8, the sales volume of Zhijie R7 was 3,160 vehicles; From December 1st to December 6th, the sales volume of the ideal L6 was 5,500 vehicles. The weekly sales of these two cars directly affect the monthly sales of Qiruixing Road Star Era ET.

If you look at it this way, it is obvious how miserable ET is. The seeds have been delivered or planted from the first Star Road Star Era ET.

We can see what consumers think about the newly listed Star Road Star Era ET, and maybe there is an answer here.

In terms of appearance, the ET extended-range four-wheel drive model of Xingtu Xingyu Era is consistent with the two-wheel drive model currently on sale. As for the body size, the length, width and height are 4955/1975/1698mm and the wheelbase is 3000mm respectively. However, Star Road Star Era ET extended-range four-wheel drive models have added a variety of body colors such as Xinghan Grey, Xuanwu Grey and Kuangyizi, as well as new styles of 20-inch multi-spoke wheels.

In the interior part, the design of the current model is still continued, and some configurations are added. The car chip is upgraded from 8155 to 8295.

The intelligent driving part will be equipped with Dazhuo intelligent driving. The official claims that it can realize end-to-end intelligent driving, and the public beta will be opened soon. It is expected that the urban navigation function of the core 20+ cities will be opened during the year and will be open to the whole country in 25 years.

In terms of power, the new car is equipped with a 1.5T range extender with a maximum power of 156 HP, a dual-motor four-wheel drive system with a maximum power of 469 HP, a 0-100km/h acceleration of 4.8 seconds, a 41kWh Kunpeng battery pack, a SOC of 20%-80% charging time of 17.5min, and a CLTC battery life of 240km.

Just look at the data, Star Road Star Era ET is not weak, multi-version, suitable for different consumers, should have good sales?

In fact, the sales volume is not good, which is nothing more than these. The first is that the marketing is not done well.

Indeed, in the influence part, the brand positioning and awareness of Xingtu are relatively weak, which is not as good as that of the intellectual world and the ideal. Behind the intellectual world is the aura of Huawei. The ideal is to accurately grasp the appetite of consumers in the marketing part, such as color TV sets, refrigerators and big sofas.

However, these are also matched with the Star Road Star Era ET. Why is the sales volume still not good?

That depends on the feedback from the old car owners. What’s the word of mouth?

From an automobile quality complaint platform, the main complaints of Star Road Star Era ET include car jam, range extender and abnormal sound of the car body. Therefore, we can see that the ET extended-range four-wheel drive model of Xingtu Xingyue has been adjusted, and the car chip has been upgraded from 8155 to 8295, which may be because we have heard the voice of the old car owner.

Regarding the range extender and abnormal car body noise, I personally feel that this is a fetal disease, and it can’t be done by replacing that part. Just like writing a program, you say there is a BUG in this code. Modify it, and I will go. The program crashes, and it can’t even run. If it is the abnormal sound of the car body accessories, finding the root cause can still be solved. I am afraid that the key and complicated parts are really difficult to solve.

Personally, it is necessary for Star Road officials to find out the reasons and solve the pain of these old car owners.

Here, I would like to spit out that some car companies and dealers are very unkind. When the vehicles are sold, they feel that the owners are no longer potential customers, so they are worthless. In fact, on the contrary, they are the most potential customers, and it is said by word of mouth that the good and bad vehicles are all their own. You think that your marketing is awesome, but it is not as important as their words. Just when one of his friends or people around him bought a car, he said that a good word might make a deal, and that the car was "rubbish" and he would definitely run away. Do you think what I said is reasonable?

Then look at the comments from netizens. If the steering wheel and instrument are too ugly, don’t say it for the time being.

However, a netizen said it very well, and Zhijia is a futures! How can Dazhuo compare with Huawei? Most netizens feel that Chery has launched a smart world that focuses on smart driving, and other models will honestly do a good job of quality.

Another reason that really affects the sales of ET in Xingtu Xingyue is smart driving. At present, the competition for smart driving in China is very fierce, and then the futures are sold to consumers. Obviously, no one buys it.

Some netizens directly commented that Chery spent so much money to invite Gu Junli, and now all of them have been pushed end to end. Please stay tuned for Chery. . . . . .

After all, now consumers go to test drive when they buy a car. It is not as practical as a test drive to try something in his ear.

What do you think is the reason why the sales volume of ET is not as good as that of ideal L6 and intellectual R7?

Source: Tram House https://www.zhev.com.cn/news/show-1657899951.html

Xie Hongfei： The applicable relationship between the right of recourse of the joint debtor and the legal subrogation —— Taking Article 519 of the Civil Code as the analysis object.

Original Xie Hongfei Shanghai Law Society

Xie Hongfei, Research Fellow and Doctoral Supervisor, Institute of Law, Chinese Academy of Social Sciences.

synopsis

The right of recourse of joint and several debtors is the same as that of statutory subrogation, and whether the latter is established and its scope depends on the former. In traditional theory, the legal effects of the two are quite different, because the former is the debtor’s inherent right, and the latter is derived from the legal succession of creditor’s rights. The two should not constitute a competitive relationship, and the right holder should choose one to apply, but should apply as one, and the latter should supplement and strengthen the effectiveness of the former, which is also in line with the literal meaning of the civil code. After the termination of the contract that gave rise to the joint and several debts, if the creditor is unable to perform the obligation of return, the joint and several debtors who perform the debts in excess of the share shall enjoy the right of recourse. The creditor’s rights exercised by the debtor during recourse and subrogation are all creditor’s rights in installments. When claiming or exercising the right of security, the debtor should distinguish between the guarantee of joint and several debts and the guarantee of the whole joint and several debts. If the creditor abandons the collateral rights such as the guarantee, and the obligee cannot recover, it shall be liable for damages. The right of recourse should also be inferior to the creditor’s right. The scope of legal subrogation is determined by the right of recourse, and the limitation of action and the reasons for preventing the exercise of the right of claim should be unified.

Keywords: the legal subrogation right of joint and several debts; Article 519 of the Civil Code; the legal relationship of competing claims

First, the question raised

Joint and several debts include the external legal relationship between debtors and creditors and the internal relationship between joint and several debtors. In the internal relationship, the most important thing is the right of recourse and legal subrogation of joint and several debtors. Countries have different legislative cases. First, only the right of recourse is stipulated, such as the second paragraph of Article 1317 of the French Civil Code, Article 442 of the Japanese Civil Code and Article 1154 of the Spanish Civil Code. However, these countries often recognize the debtor’s legal subrogation by using the subrogation rules (such as Article 1346-5 of the French Civil Code and Article 500 of the Japanese Civil Code). Second, only the statutory subrogation right is stipulated, such as Article 1522 of the Chilean Civil Code. The third is to stipulate two kinds of rights at the same time, such as Article 426 of the German Civil Code, Articles 148 and 149 of the Swiss Debt Code, and so on, as well as Article 4: 107 of Part 3 of the draft European Model Civil Code.

In China’s law, the right of recourse and legal subrogation of joint and several debtors has gone through a development process. Article 87, paragraph 2, of the former General Principles of Civil Law and Article 14, paragraph 2, of the former Tort Liability Law only stipulate the former, not the latter. Paragraph 2 of Article 178 of the Civil Code of People’s Republic of China (PRC) (hereinafter referred to as the Civil Code) stipulates the right of recourse in joint and several liabilities, but paragraph 2 of Article 519 recognizes both: "A joint and several debtor who actually undertakes more than his share has the right to recover the excess from other joint and several debtors within the scope of their unfulfilled share, and accordingly enjoys the rights of creditors …" Similarly, Article 700 stipulates that the guarantor is undertaking the guarantee. Systematically, Article 178, paragraph 2, is a general rule, while Article 519, paragraph 2, is a contract rule, and the former is "joint and several liability" and the latter is "joint and several debt", which gives rise to a problem of legal interpretation: whether the latter can only be applied to joint and several debts arising from contracts, and debtors who exceed their share of performance enjoy two rights; However, the joint and several debts (liabilities) arising from legal facts such as infringement can only be applied to the former, so the debtor who exceeds the share performance can only claim the right of recourse and cannot obtain the legal subrogation? When there is no general part of the debt law in the civil code, its article 468 stipulates that the relevant contract code can be applied to non-contractual debts, unless it cannot be applied according to its nature. There is no substantial legal difference between joint and several debts and joint and several liabilities.The core legal issue of majority debts or liabilities arising from different reasons is whether joint debts (liabilities) can be established, but after joint debts (liabilities) are established, joint debts will not have different effects due to different reasons for their establishment. Therefore, the second paragraph of Article 519 applies to all joint and several debts, and the debtor who exceeds the share performance has both the right of recourse and the right of legal subrogation.

The second paragraph of Article 519 of the Civil Code connects subrogation and statutory subrogation with "combination", which can only be interpreted as that the joint debtor enjoys both rights at the same time, rather than choosing only one right. The problem is that these two rights have the same purpose, both of which are to make the joint debtor recover from other debtors after exceeding the performance, so it is unnecessary and impossible for them to exercise the other right after exercising either right to achieve the purpose of recovery. On this basis, Professor Wang Yuanzhi pointed out that this provision actually created a double recourse for the joint debtor, which was "not only unnecessary, but also caused contradictions in the application of the law and confusion in the logical system", so he suggested that this provision be amended to mean that the joint debtor has the right to choose to exercise two rights. This criticism is based on the general theory of traditional civil law. It can be seen that under the text framework of the civil code, how to explain the applicable relationship between the two rights has certainly become an important issue.

The author’s question is the legal application relationship between the two rights. The key point is to analyze the "concurrence theory" of two rights in traditional civil law and its contradiction, and then reveal the legitimacy and obstacles of the "unification theory" of two rights. To analyze the relationship between the two rights, it is necessary to start with their respective constitutive requirements and laws. The author will also analyze the possible defects of the traditional theory on their constitutive requirements and legal effect, and explain how the obligee should exercise their rights after the civil code unifies the two rights.

Second, the legal isomorphism between the right of recourse of joint and several debtors and the constitutive requirements of legal subrogation.

(A) the root of the isomorphism between the right of recourse of joint and several debtors and the constitutive requirements of statutory subrogation

After the joint and several debtors exceed their debts, they have the right of recourse against other debtors in their internal relations. At the same time, the paid-off creditor’s rights should have been eliminated, but the legal fiction creditor’s rights continue to exist, and the legal subrogation right has been obtained for the paid-off joint debtor, with the sole purpose of ensuring that the debtor can recover from other debtors. Although this right is called "legal subrogation", its essence is the legal transfer of creditor’s rights, which is obtained on the basis of paying off subrogation. Therefore, the right of recourse is the premise and foundation of legal subrogation, which determines whether the latter is established. In other words, the right of legal subrogation is subordinate to the right of recourse, and its purpose is to strengthen the right of recourse. If the right of recourse does not exist, the right of legal subrogation will not arise. After the right of recourse is realized, the transferred creditor’s rights are also eliminated. This is also the reason why the right of recourse is often stipulated first and then the legal right of subrogation is stipulated in comparative law. It can be seen that because of the same purpose, their constituent elements are exactly the same.

In addition, as stipulated in the second paragraph of Article 519 of the Civil Code, the scope of the right of recourse also determines the scope of the legal right of subrogation. If there is no legal subrogation, the creditor’s rights will be destroyed, and there is no need for the law to make the creditor’s rights continue to exist and transfer legally. If the scope of legal subrogation exceeds the right of recourse, it will form a recovery cycle, that is, the debtor A can recover all the debts from B after performing, and B will recover all the debts from A after being recovered. If the scope of the right of recourse is less than the legal subrogation, it will cause the obligee of recourse not to fully exercise the security right on the creditor’s rights, which may lead to the partial failure of the recovery. This further shows that the legal right of subrogation is attached to the right of recourse. Therefore, for the convenience of writing, the following only expresses the elements of the right of recourse.

(2) The difficult problem of the establishment of the right of recourse and legal subrogation of joint debtors.

Generally speaking, the elements of the right of recourse include: 1. The obligee has the right to pay off joint debts or other reasons similar to paying off, regardless of whether it is his own initiative or passive action. 2. Other joint and several debtors are also exempted from all or part of their debts because of the obligee’s settlement or similar settlement, that is, the obligee’s behavior has caused the joint and several debts to be completely or partially eliminated. 3. The obligee makes the debt relief of other joint debtors exceed the obligee’s share, that is, the performance amount is greater than the share amount. However, in bankruptcy proceedings, there are exceptions to the establishment and exercise of the right of recourse. When a joint debtor is declared bankrupt and the creditor fails to declare his creditor’s rights, other joint and several liable persons have the right to declare the total amount recoverable in the future as bankruptcy property and exercise the right of recovery in advance. There is no provision in the Civil Code, but Article 23 of the Supreme People’s Court "Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases" clearly gives joint debtors this right. Articles 121 and 134 of the proposed draft of the Civil Code Sub-provisions of the Civil Code Compilation Working Group of China Academy of Social Sciences have also made provisions.

The disputes over the constitutive requirements of the right of recourse mainly focus on the following issues.

1. Is it based on the premise that the performance exceeds the share?

It is a well-known controversial issue in comparative law whether the right of recourse is established when the joint debtor exempts other joint debtors from part of their debts due to liquidation and other acts, but the performance amount does not exceed the share amount. If the joint debt is 300 yuan, Party A, Party B and Party C each share 100 yuan. After paying off 60 yuan, can Party A ask Party B and Party C to share 20 yuan?

Affirmative theory (positive theory) holds that the joint debtor only enjoys the right to recover the money when the performance exceeds the share, so in the above case, A does not enjoy the right to recover. In terms of legislation, Article 1317 of the French Civil Code adopts this view, as does Article 148, paragraph 2, of the Swiss Debt Code, which seems to be taken for granted by Swiss academic circles. The same applies to article 4: 107, paragraph 3, Part 3 of the draft European Model Civil Code. Negative theory (negative theory) is not based on excess, such as the first paragraph of Article 442nd of the Japanese Civil Code.

Generally speaking, it is affirmative. The reason is that if the recovery is allowed at this time, it will inevitably lead to the obligor of recovery first performing to the obligee of recovery, and then, in turn, recovering from the obligee of recovery, which will not only complicate the legal relationship, but also waste social resources. However, the negative theory has two advantages: first, it is more conducive to the realization of fairness. For example, in the aforementioned case, if Party A can’t recover from Party B and Party C, then the creditors are exempted from joint and several debts. At this time, only Party A has fulfilled its debts, and Party B and Party C are unscathed, and the imbalance of interests among all parties is very obvious. In addition, when the amount that Party A continues to perform later exceeds the share, although Party A can exercise the right of recovery, Party B and Party C may fall into a state of lack of resources, resulting in the failure of recovery. Second, it is more in line with the nature of joint and several debts, that is, joint and several debtors share the debts, and any joint and several debtor can ask other debtors to perform according to their share of debts. If other debtors fail to perform, the debtor who has performed can naturally recover from them.

However, both legislation and judicial practice in our country adopt affirmative theory. Before the promulgation of the Civil Code, this was the case in Article 87, paragraph 2, of the former General Principles of Civil Law and Article 14, paragraph 2, of the former Tort Liability Law, and this standard was also applied in judicial practice. For example, the Supreme People’s Court’s "Reply on the Direct Execution of the amount of recovery from other joint and several liable persons by the party who has been determined to bear joint and several liabilities in the judgment" (Fa Jing [1992] No.121) holds that the application of the recovery procedure is that the joint and several liable persons repay the debts on behalf of the principal debtor according to the judgment or assume more joint and several liabilities than their share. Some courts even take full settlement as the premise of recovery, such as "Shanxi Qingshan Chemical Co., Ltd. v. Shanxi Aoer Pharmaceutical Co., Ltd. and other cases of recovery rights" and "Jilin Baili Car Rental Co., Ltd. v. Li Moumou and Sun Moumou".

Article 519, paragraph 2, of the Civil Code clearly stipulates that the premise of the right of recourse is that "the debt actually assumed exceeds its share". Therefore, in the theory of interpretation, the only exception is that the debtor and the debtor jointly make an opposite agreement, which is of course valid according to the principle of freedom of contract. In order to balance the conflict between the above two theories and give consideration to the current law, one situation in which the negative theory can be recognized in the application of law is that although the debtor’s performance amount does not exceed the share amount, the subsequent creditor’s rights are subject to prescription and all the joint and several debtors claim prescription defense. At this time, the amount of recovery should be calculated according to the proportion of each debtor’s share and performance. For example, if Party A, Party B and Party C undertake joint and several debts of 3 million yuan, the share relationship is 2: 3: 5, then Party A has fulfilled 300,000 yuan (1/2 of the share), Party B has fulfilled 300,000 yuan (1/3 of the share), and Party C has fulfilled 300,000 yuan (1/5 of the share), with a total performance of 900,000 yuan. According to the share, Party A shall bear 180,000 yuan (90× 2/10); Party B shall bear 270,000 yuan (90×3/10), and Party C shall bear 450,000 yuan (90×5/10). Party A may recover 120,000 yuan from Party C, and Party B may recover 30,000 yuan from Party C..

When applying the affirmation theory of civil code to judge whether it exceeds the burden, the creditor’s rights due shall prevail. For example, if the total amount of joint and several debts borne by Party A, Party B and Party C is 3,000,000 yuan, and the shares of all three parties are 1,000,000 yuan, Party A should pay 1,000,000 yuan in one year and Party B and Party C should pay 1,000,000 yuan in three years, but Party A paid off 1,000,000 yuan to Party B in the first year, and neither Party B nor Party C fulfilled the due debts. At this time, the repayment amount of Party A did not exceed its share, but its excess performance of 500,000 yuan in advance should be interpreted as not giving up the term interest, but fulfilling the joint and several debts that Party B and Party C have expired, so Party A can recover from Party B and Party C.. In addition, if the creditor waives part of the joint and several debts or the debtor changes the debt share, the share should be calculated based on the changed debt amount. If Party A fulfilled the joint and several debts of 1 million yuan according to its share, it would not have the right of recourse, but when the creditor exempted part of the joint and several debts, resulting in its share of 500,000 yuan, Party A would have the right of recourse.

2. Whether to limit the causes leading to joint exemption?

When a debtor’s creditor’s rights are extinguished for reasons other than liquidation, the debtor’s right of recourse depends on whether the debtor extinguishes the creditor’s rights by reducing its property. Paying off by proxy, offsetting, escrow and paying off are the same, all of which means that the debtor eliminates the creditor’s rights by reducing his own property, so the right of recourse arises; The consideration of eliminating creditor’s rights by confusing means is that the debtor’s creditor’s rights are also eliminated, and there is also the right of recourse. However, the joint and several debtors have obtained the right of defense because of the limitation or their debts have been exempted, and the debtor’s property has not been reduced, so there is no right of recourse.

(3) The constitutive elements of the right of recourse of joint debtors and the expansion of legal subrogation.

When the right of recourse claims from other debtors, if a debtor is unable to pay off his share of debt, if the right of recourse can ask other joint debtors to share the loss, it will constitute the expansion of the right of recourse. If four joint debtors bear the creditor’s rights of 2000 yuan, and their shares are 500 yuan, if one of them is unable to pay off, the other three people will share 166.66 yuan. Many legislative cases recognize this expansion, such as Article 426 of German Civil Code, Article 445 of Japanese Civil Code, Article 148, paragraph 2 of Swiss Debt Code, etc., and so does Article 4: 107, paragraph 3 of Part 3 of the draft European Model Civil Code.

The reasons for the expansion of the right of recourse are the principle of fairness and the principle of good faith. All joint and several debtors benefit from the elimination of joint and several debts. When the right of recourse cannot be recovered from other joint and several debtors, it is bound to form injustice among joint and several debtors if they are allowed to bear the losses alone. On the contrary, the irrecoverable risk is borne by all debtors, which is not only fairer, but also in line with the nature of joint and several debtors sharing debts. In addition, if this kind of expansion is denied, it is likely that when the creditor requests a joint debtor to exceed the performance, the debtor will try to avoid performance by delaying as much as possible based on economic rationality, let alone paying off the debt voluntarily when it expires. Once every joint debtor takes this kind of economic rational behavior, it may lead to the expansion of joint debt due to the payment of liquidated damages or interest, and ultimately all joint debts will suffer.

There are two criteria for judging the irrecoverability. First, other debtors are unable to pay off. Article 445, paragraph 1, of the Japanese Civil Code adopts this standard, and the person with the right of recourse needs to prove that other debtors have no responsibility for property before requesting other joint debtors to share it. Second, it is impossible to obtain repayment from other debtors. That is, after taking reasonable measures, the right of recourse is still unable to obtain repayment from the debtor. Article 4: 107, paragraph 3, Part 3 of the draft European Model Civil Code adopts this standard. The second standard is more relaxed, which includes not only the inability of the obligor to recover, but also the disappearance of the obligor, which is beneficial to the obligee of recovery and more appropriate. Because after the joint and several debtors share the share that cannot be recovered, if the obligor for recovery can pay off later, the obligee for recovery can also recover, thus ensuring the fairness among the joint and several debtors.

The application of the principle of fairness in the case of the expansion of the right of recourse can also draw two rules:

The first is the restriction on the expansion of the right of recourse. When the failure to recover is caused by the negligent behavior of the right of recourse, the right of recourse should not be expanded. If the obligee of recourse is lazy in exercising the right of recourse to the obligor of recourse, and the obligor of recourse has no resources in the future; Another example is the delay in exercising the security interest provided by the obligor for recovery, and then the collateral is damaged and no compensation or insurance money is obtained. "You have to blame yourself, and you must not drag others." Article 445, paragraph 2, of the Japanese Civil Code recognizes it.

Second, it is certain that the joint and several debtors who share the debt within the joint and several relationship can become the recovery obligor. This includes two situations: (1) The contribution of 0 is later caused by exemption or limitation of action. In Taiwan Province, China, Article 282 and other paragraph 1 of the "Civil Law" clearly stipulates this. If Party A, Party B and Party C bear joint and several debts to Party D, after Party D forgives Party A’s debts, Party A has no share in internal relations, but it is not exempted from joint and several debts. If Party B has fulfilled all the joint and several debts, although it cannot recover from Party A, it can recover from Party A after it fails to recover from Party C.. (2) The contribution of 0 is determined when the joint and several debts are established. If Party A and Party B buy the goods of Party C, Party D is not the buyer, but all parties agree that Party A and Party D shall bear joint and several debts to Party C, and Party D shall not bear the debts in internal relations from the beginning. After Party A has performed the joint and several debts to Party C, it can’t recover from Party D, and after it fails to recover from Party C, it can’t ask Party D to share its share. However, if Party A buys goods from Party D, neither Party B nor Party C is the buyer, but they participate in the contract and jointly bear joint and several debts with Party A to Party D.. When Party B fails to recover from Party A after performing the joint and several debts, it may request Party C to bear half of the joint and several debts, because the share of Party B and Party C in the joint and several debts is zero, and their legal status and treatment should be the same. The second paragraph of Article 445 of the revised Japanese Civil Code stipulates that if neither the obligee nor the obligor bears the burden, the parties shall share the burden of the unpaid part in equal proportion.

Paragraph 3 of Article 519 of the Civil Code also confirms the expansion of the right of recourse, which stipulates that if the recovered joint debtor fails to perform its share, the other joint debtors shall share it in proportion. This is an important development of China’s joint and several debt system.

(4) Obstacle elements of the right of recourse and legal subrogation of joint debtors.

The obstacle of joint and several debts is a famous controversial issue in Germany about joint and several liabilities. It refers to whether the joint liability is established when the creditor relieves the debts of the joint debtor, or when a joint debtor should be relieved according to the law. The establishment of joint liability directly determines the existence of the right of recourse, so this paper also discusses this obstacle element of the right of recourse. In addition, in theory, there is also the "duality of joint and several debts", which refers to the agreement on internal share sharing between the debtor with reduced liability and the debtor without reduced liability, which has no legal effect on creditors, but constitutes an agreement on the right of recourse between the parties, and of course has legal effect.

Obstacles to joint and several debts can be divided into two types. First, before the joint and several debts are generated, creditors forgive the debts of a potential joint and several debtor in advance. Second, after the joint and several liability arises, the creditor waives its debt, or the law relieves its debt.

In typology, because both legal relief and creditor’s prior relief occur before joint and several debts, they can be included in the same type, so the author classifies joint and several debts according to the time when they are established. Because these situations involve tort liability, the author uses the terms of joint and several debts or joint and several liabilities to distinguish the situations.

1. forgive debts in advance

There are two situations in which some joint debtors are exempted from liability in advance: first, the creditor and the potential debtor agree in advance that the creditor will reduce the debtor’s future liability. German academic circles often take the good-will ride as an example to explain: A takes B’s car for free, and the two agree in advance to exempt from the tort liability of traffic accidents. Later, due to the common fault of B and C, A suffers personal injury, and B and C should bear joint liability for A. The second is the exemption provided by law. For example, Article 1217th of China’s Civil Code stipulates that if a traffic accident of a non-operating motor vehicle causes damage to a free rider, as long as the motor vehicle user has no intentional or gross negligence, his liability for compensation shall be reduced. If Party A and Party B agree in advance to exempt Party B from liability, or if the law is directly applied without agreement on exemption, the establishment of joint liability and obstacles to recovery will occur. Therefore, the solution of statutory exemption is the same as that of agreed exemption. This paper takes agreed exemption as an example to illustrate.

There are three solutions to this problem: one is to fully recognize the exemption agreement. In this case, Party B is not liable according to the contract, so Party B and Party C are not jointly and severally liable, and Party C should be liable for all the damages of Party A, and cannot recover from Party B.. This scheme actually makes the agreement between Party A and Party B effective for Party C, and the debtor who has not been exempted will bear all the responsibilities, which is equivalent to the contract setting obligations for the third party, so it cannot be established. The second is to completely ignore the exemption agreement. That is, Party B and Party C are jointly and severally liable for Party A, and they do not relieve Party B of their responsibilities in internal relations. After taking full responsibility for Party A, Party C can claim compensation from Party B.. Because Party A has legally exempted Party B from the responsibility in advance, Party B can recover from Party A, which constitutes a "recovery cycle" and is extremely inefficient. The third is to make the agreement effective, but not to harm the interests of other responsible persons. That is, the amount of damages paid by C to A has been reduced from the beginning to the amount that C should bear internally. This scheme is the consensus of German theoretical and practical circles. Its advantage lies in that it not only avoids the serious injustice caused by the inability of the person who has not been exempted to recover all the debts, but also respects the exemption agreement between creditors and individual debtors, which is worthy of recognition.

2. Subsequent exemption

After the establishment of joint and several debts, if the creditor exempts the debtor, can the right of recourse recover it? It depends on the specific content of the exemption. First, if the creditor waives the debt share, at this time, the other debtors are jointly exempted due to the reduction of the total amount of joint and several debts, but the debtor who is exempted from the debt is not separated from the joint and several debt relationship, so it should also be recovered in the case of expansion of recovery. Second, the creditor’s exemption is only a debtor’s "joint and several" debts, but it does not exempt the debtor’s debts. Its essence is to change the debtor’s joint and several debts into debts in installments. This kind of behavior can only bind the creditor and has no legal effect on other joint debtors. Of course, the person with the right of recourse can claim the right of recourse against him.

3. Other circumstances

It is worth thinking about a special case of the expansion of the right of recourse: after the joint debtor pays off the debt, the contract that generated the joint debt is dissolved, or when the joint debt based on infringement is finally judged by the court to be invalid and the creditor is unable to return it, can the debtor who has performed the joint debt recover from other debtors? Traditional civil law rules do not involve this rule. The author believes that in the first case, the joint and several debts once existed legally and truly, and the debtor who paid off trusted the existence of the debts, and the repayment was in the interests of all debtors. Based on the special relationship between the joint and several debtors and the principle of fairness, the right of recourse should be recognized at this time. However, in the second case, joint and several debts do not exist from the beginning, and even if each debtor trusts to establish joint and several liabilities, it is not enough to create joint and several relations among debtors, so it is not appropriate to recognize the right of recourse.

Three, the theory of the legal effect of the right of recourse and legal subrogation is the same and different.

Since the constitutive requirements of the joint debtor’s right of recourse and legal subrogation are the same, their legal effects must be common; At the same time, as two different rights, their legal effects are bound to be different.

(A) the legal effect of the right of recourse and legal subrogation.

1. The debt-to-share rule applies to all.

When the obligee of recourse exercises the right of recourse against multiple debtors, the debtors’ debts are in shares, and the obligee of recourse can only recover according to each debtor’s share. The legal subrogation is the subrogation to the creditor. Logically, the legal subrogation holder may request the recovery obligor to bear joint and several debts. However, if the obligee of recourse requests other debtors to bear joint and several debts, it will cause a cycle of recourse. For example, if the joint and several debtors A, B and C bear an average of 3 million yuan of joint and several debts, and after A bears all the debts, it will recover 2 million yuan from B, then B will inevitably recover 1 million yuan from C.. Therefore, in subrogation, the original creditor’s rights are also converted into debts in proportion. Article 1522 of the Chilean Civil Code clearly stipulates that the legal subrogation holder can only ask the debtor to perform his share.

Unless otherwise stipulated by law or in the contract, the joint debtors shall share the debts equally. This is a general rule for countries or regions to distribute shares among joint debtors, such as Article 426, paragraph 1, of German Civil Code, Article 148, paragraph 1, of Swiss Debt Code, and Article 280 of Taiwan Province Civil Code.

Paragraph 2 of Article 178 of China’s Civil Code stipulates that "if it is difficult to determine the size of the liability, the joint and several liable persons shall bear the liability equally", and paragraph 1 of Article 519 also stipulates: "If the share between joint and several debtors is difficult to determine, it shall be regarded as the same share." Accordingly, the rules for determining the share at the time of recovery should be: first, according to the agreement between the debtors. Based on the principle of freedom of contract, no matter what causes the joint and several debts, each debtor can agree on the internal share of responsibility, including agreeing that a debtor will bear all the debts and a debtor will not bear the debts. When judging whether there is a share allocation agreement between joint and several debtors, in addition to express agreement, we should also consider implied agreement, the content and purpose of legal relationship and "the nature of things", especially in the case of joint and several debts arising from contracts, in order to meet the true meaning of debtors and realize natural justice. When several sellers bear joint and several debts for consideration, although the internal share is not agreed, but the ownership is obtained in different proportions, when sharing the debts internally, it should be decided according to the ownership proportion. Secondly, according to the general provisions of the law on joint and several debt sharing. For example, in the case of joint infringement, the debt ratio is determined according to the cause of the damage or the degree of fault of the perpetrator; In a civil partnership, according to Article 972 of the Civil Code, partners should share the debt in proportion to their capital contribution. Finally, the direct application of the first paragraph of Article 519 of the Civil Code is regarded as the norm.

At the time of recovery, each joint debtor shall share the debt according to the proportion of the debt. If Party A, Party B and Party C share the debt of 1 million yuan according to 2: 3: 5, after Party A pays off all the debts, it can recover 300,000 yuan (3/10 of the total debt) from Party B and 500,000 yuan (5/10 of the total debt) from Party C; If Party A partially pays off 440,000 yuan, it will exceed its share of 240,000 yuan, and can recover 90,000 yuan (3/8 of the total debt) from Party B and 150,000 yuan (5/8 of the total debt) from Party C..

2. Debt shares overlap.

The scope of the debt amount targeted by the right of recourse and legal subrogation overlaps, that is, the principal creditor’s rights, liquidated damages, interest, etc. However, there may be differences between the amount of exemption and the amount of recovery, which is mainly seen in the situation of payment in lieu of goods, including two types: First, the amount of exemption is lower than the amount paid. For example, Debtor A pays off debts of 600,000 yuan with a house with a market price of 1 million yuan. Since the joint exemption amount of other debtors is 600,000 yuan, the recovery amount shall be calculated based on 600,000 yuan, and the remaining 400,000 yuan shall be solely responsible for it. Second, the exemption amount is higher than the payment amount. For example, if the debtor A pays off the debt with a house with a market price of 600,000 yuan, it should be calculated according to the true meaning of the creditor’s debt exemption. When the creditor’s meaning is unclear, three situations can be considered to explain its meaning: (1) The exemption amount is equal to the debtor’s share for repayment. For example, in this case, A’s debt share is exactly 1 million yuan. According to life experience, it can usually be concluded that the creditor is exempt from A’s full share. A can’t recover from other debtors, and other debtors can’t recover from A except in the case of expansion of recovery rights. (2) The exempted amount is greater than the share of the debtor for settlement. For example, in this case, A’s debt share is 800,000 yuan. At this time, it should be interpreted that the creditor has exempted the joint debt of 200,000 yuan from other debtors in addition to the share of A, and its recovery is the same as that in (1). (3) The exempted amount is less than the share of the debtor for settlement. For example, in this case, A’s debt share is 1.2 million yuan. At this point, Party A can’t recover from others, and other debtors can ask Party A to share 200,000 yuan after performing their debts.

(B) the right of recourse and legal subrogation different legal effects

In jurisprudence, the core effect difference between the right of recourse and the right of statutory subrogation lies in their different sources. The former is the right that the joint debtor obtains from other debtors after paying off, which is a new right and does not depend on the creditor’s rights; The latter is derived from the rights of the original creditor, which is the legal inheritance of the creditor’s rights, not a new right, and is attached to the creditor’s rights. The difference in legal effect between the two is mainly reflected in the following aspects:

1. Ways to acquire rights

From the way of obtaining rights, the right of recourse is automatically obtained without special legal procedures, and its exercise methods and means are the same as ordinary creditor’s rights. Legal subrogation is the creditor’s right of legal successor, which should refer to the procedures and rules of creditor’s right transfer based on legal acts. Article 412 of the German Civil Code stipulates that the legal assignment of creditor’s rights shall apply mutatis mutandis to the assignment of creditor’s rights based on the rules of legal conduct, so as to regulate the assignment of creditor’s rights directly generated based on legal provisions. The purpose of assignment of legal creditor’s rights is mainly to obtain the basis of the right of recourse or to strengthen the right of recourse. According to its article 409, the assignment of creditor’s rights has legal effect on the debtor after it is notified. The civil code of our country has no special provisions on this, so the provision in the first paragraph of Article 546 should be excluded from the interpretation, that is, if the creditor fails to notify the debtor when transferring the creditor’s rights, the transfer will not be effective to the debtor. This is mainly based on the consideration of efficiency: the joint debtor and the creditor usually know each other, and when the debtor exercises the right of recourse, the debtor will usually get in touch with the creditor, and the debtor is unlikely to pay off the debt fictionally.

2. Reasons for the obligor of recourse to block the exercise of the right of recourse

The right of recourse is a new right that has been acquired for the debtor who has paid off. It is an original right, not the right of derivative acquisition, so there is usually no burden. Generally speaking, according to this logic, it is further argued that when the right of recourse claims from other debtors, the latter cannot oppose the debtor on the grounds of its opposition to creditors, such as the lapse of time. If Party A, Party B and Party C enter into sales contracts with Party D respectively, the amount of each contract is 1 million yuan, and all parties agree that Party A, Party B and Party C shall bear joint and several debts for all contractual claims of 3 million yuan. If Party A pays off all the creditor’s rights, when claiming compensation from Party B, Party B cannot claim from Party A that its creditor’s rights with Party D have expired or that it enjoys the right of defense against Party D at the same time, or that Party D’s creditor’s rights will be offset.

The effect of legal subrogation is the legal transfer of creditor’s rights. Based on the general principle of assignment of creditor’s rights, the debtor’s legal treatment does not change, especially its various rights to creditors. Therefore, when a joint debtor claims against other debtors based on legal subrogation, it is likely to encounter two situations that hinder the exercise of the right of claim.

First, the debtor claims the former’s defense against the creditor to the right of recourse. Although the legal subrogation person obtains the creditor’s rights on the basis of legal provisions, the purpose of legal assignment is to protect the right of recourse, and the law can’t detract from the debtor’s interests, otherwise, it will lead to constitutional problems by infringing property rights through legislation. Therefore, the legal subrogation person inherits the creditor’s rights at the same time, and the debtor still enjoys all defenses against the original creditor. Article 412 of the German Civil Code stipulates that the legal assignment has the same effect as the intentional assignment, unless the specification of intentional assignment cannot be applied based on its nature, such as the use of the principle of appearance in the assignment of creditor’s rights in Article 405. According to Article 404 of the German Civil Code, the debtor has all defenses against the transferee and the right to exercise. Article 1346-5 of the French Civil Code also clearly stipulates that in subrogation, the debtor may claim a defense based on the debt itself against the subrogation creditor. These kinds of defences (rights) include invalid contract, revoked or dissolved contract, limitation of action for creditor’s rights, performance defence in bilateral contract, etc. Article 548 of China’s Civil Code stipulates that after the debtor receives the notice of assignment of creditor’s rights, the debtor may claim the defense of the transferor from the transferee. Article 519, paragraph 2, also clearly stipulates that other joint debtors’ defenses against creditors may be claimed against that debtor. These provisions do not specify the occurrence time of the debtor’s defense against the assignee. In practice, there may be such a situation: after the right of recourse is established, other joint debtors terminate their contracts with creditors.At this time, can you defend the right of recourse against the right of recourse? Based on the above analysis, the debtor’s right of defense against the creditor can only be claimed against the obligee if it occurs before the repayment.

Second, the debtor claims set-off from the claimant. When the right of recourse is exercised by the right of recourse, the debtor may claim two rights of set-off: the debtor’s right of set-off against the right of recourse and the debtor’s right of set-off against the creditor of joint and several debts. The former applies the general set-off rules, while the latter applies the set-off rules in the assignment of creditor’s rights.

It is a general rule that the debtor can claim the creditor’s right of set-off from the creditor’s right assignee. For example, Article 406 of the German Civil Code clearly stipulates that its purpose is the same as the debtor’s right of defense, in order to prevent the debtor’s legal office from deteriorating due to the transfer of creditor’s rights. According to Article 548 of China’s Civil Code, after the debtor receives the notice of assignment of creditor’s rights, the debtor can claim against the transferee, and its Article 549 limits the offset to two situations. What is worth discussing is the first case, that is, when the debtor receives the notice of assignment of creditor’s rights, the debtor enjoys the creditor’s rights to the transferor, and the debtor’s creditor’s rights expire before or at the same time as the assigned creditor’s rights. Usually, set-off has no restriction on the acquisition time of active creditor’s rights; However, in the assignment of creditor’s rights, the debtor’s active creditor’s rights have strict requirements on the acquisition time, which aims to reduce the risk of the transferee and prevent the new burden on the creditor’s rights after the assignment of creditor’s rights. However, this is unfair to the debtor and therefore controversial. When the joint and several debtors inherit the creditor’s rights legally, the creditor’s rights claimed by the recovery obligor are limited by time and fair (detailed below).

3. Starting point of limitation

The right of recourse originates from the basic legal relationship between the joint and several debtors, and it is an independent claim against other joint and several debtors. Therefore, it is generally believed that the limitation of action should be calculated from its establishment, and whether the joint and several debts are subject to the ordinary limitation of action or not, the right of recourse is subject to the ordinary limitation of action, which is 3 years from the date of the debtor’s overpayment according to Article 188, paragraph 1, of the Civil Code. It should be noted that the settlement in the right of recourse does not include early settlement, otherwise it will damage the time limit interests of other joint debtors in performing joint debts. Therefore, in the case of excessive settlement in advance, the limitation of action of the right of recourse should be calculated from the date when the creditor’s right expires.

The legal effect of statutory subrogation is the inheritance of the original creditor’s rights, which does not produce new rights, but only changes in the subject of creditor’s rights. In addition, the premise of statutory subrogation is that the debtor overpays, so when it comes into being, the limitation of creditor’s rights must have begun to calculate. Therefore, it is generally believed that the starting point of limitation of statutory subrogation is the same as the original creditor’s right. Distinguishing the starting point of limitation of two kinds of rights is one of the main arguments supporting the concurrence of the right of recourse and legal subrogation, and its logical conclusion is very clear: as far as the limitation of action is concerned, it is more favorable for the debtor to choose the right of recourse.

4. Scope of recovery

In two cases, the scope of the right of recourse and legal subrogation will be different:

First, the right of recourse is greater than the legal right of subrogation. This is mainly seen in the case that the right of recourse pays reasonable expenses, suffers losses and requests to bear interest after exemption. It is stipulated in the first paragraph of Article 281 of the "Civil Law" in Taiwan Province and Article 442 of the Japanese Civil Code. Reasonable expenses include settlement expenses, expenses paid in response to the lawsuit filed by creditors, packaging expenses, transportation expenses, etc., and losses such as the loss of selling property at a low price due to the creditor’s request for enforcement. These expenses and losses are paid or borne by all joint debtors, so they should be shared by all creditors. But logically speaking, they are not the content of creditor’s rights, and the creditor has not benefited from them, so they are not within the scope of statutory subrogation. However, the creditor’s rights drafted by law are not eliminated but legally inherited, and interest can be included in the scope of the original creditor’s rights. China’s civil code does not make clear provisions on this, so we can refer to the idea of Swiss law, that is, according to the rules of negotiorum gestio in Article 422 of the Swiss Debt Code, we can request other debtors to share the expenses and damages arising from good faith.

Second, the right of recourse is less than the legal subrogation. This is mainly seen in the losses and expenses paid by the claimant due to his negligence. Based on the general imputation principle, these losses and expenses should be borne by themselves and cannot be shared by other debtors. Article 280 of the "Civil Law" in Taiwan Province and Article 442 of the Japanese Civil Code have clearly stipulated it, but the Civil Code is not explicit, and the interpretation conclusion should be the same.

5. Have you obtained the right of subordination?

Since the right of recourse is a right between joint and several debtors, the obligee naturally cannot claim all kinds of guarantees on joint and several debts, including secured creditor’s rights and secured real rights.

The legal effect of legal subrogation is to inherit the creditor’s rights, and the subordinate rights of the original creditor’s rights are also transferred with the creditor’s rights. For example, according to Articles 412 and 401 of the German Civil Code, at the time of legal assignment, the subordinate rights and priorities of the creditor’s rights are transferred at the same time as the creditor’s rights, all the security rights of the creditor’s rights are transferred to the assignee, and other subordinate rights such as interest and liquidated damages are also transferred; Article 1346-4 of the French Civil Code has also made similar provisions. Article 547 of the Civil Code stipulates that when a creditor transfers his creditor’s rights, all other subordinate rights are transferred to the assignee, except the subordinate rights exclusively belonging to the creditor. Although the second paragraph of Article 519 doesn’t stipulate the rules of quasi-intention assignment of legal creditor’s rights, there is no obstacle in interpretation, and the joint debtor can obtain the security right and other accessory rights of creditor’s rights based on legal subrogation.

Four, the substantive unity of the joint debtor’s right of recourse and legal subrogation.

(A) the contradiction between the right of recourse of joint and several debtors and the concurrence of legal subrogation

Generally speaking, the two rights have the same purpose, both of which are to protect the obligee from asking other debtors to bear their share of debts, so they constitute a competitive relationship and the obligee can choose to exercise them. No matter which right you choose to exercise, after the obligor performs the debt, another right will disappear. As for which is beneficial for the obligee to choose, it needs to be weighed on a case-by-case basis: if the limitation of the two rights is carried out separately, when the limitation of the original creditor’s right expires, it is beneficial to claim the right of recourse; If the original creditor’s right is attached with a security right, it is beneficial to claim legal subrogation. Even in Germany, the difference in the effectiveness of the two rights is an important test point for legal professional examinations. Experts suggest that the legal effects of the two claims should be tested separately. Chinese scholars also advocate the theory of concurrence.

The theory of concurrence seems to be logically smooth and conforms to the mainstream theory of concurrence of claims. However, even logically, it has the following two major problems.

First, it is different from the constitutive requirements explained by the classical theory of concurrence of claims. The premise of the concurrence of claims is that the same legal fact meets different constitutive requirements, and different claims can be generated based on different legal norms, and the purpose of plural rights is to meet the same purpose of the obligee. However, the previous analysis shows that the constitutive requirements of the right of recourse and the statutory subrogation are exactly the same. One claim has no independent constitutive requirements at all, but is attached to another claim. How can there be a competitive relationship?

Second, the theory of concurrence on the purpose of legal subrogation deviates from the theory of concurrence. Generally speaking, legal subrogation is called "reinforced legal assignment of creditor’s rights" because it strengthens the effectiveness of the right of recourse, makes up for the deficiency of the effectiveness of the right of recourse under the framework of jurisprudence, and makes the interests of joint and several debtors more balanced. This function of statutory subrogation also determines its subordination to the right of recourse: in terms of the elements of establishment, statutory subrogation is subordinate to the right of recourse, and when the right of recourse is not established or eliminated, it will not produce statutory subrogation; In the scope of rights, legal subrogation depends on the right of recourse; As an independent creditor’s right, the right of recourse can be transferred separately, but the legal subrogation cannot be transferred separately. However, there are contradictions between these views and the theory of concurrence: if two kinds of rights constitute concurrence, the obligee can achieve its purpose by choosing either right; However, the statutory right of subrogation is to strengthen the right of recourse, so the two must complement each other, and it is impossible to fully realize the purpose of the obligee by choosing either right. If the creditor chooses the basic right (right of recourse), its effectiveness cannot be strengthened; If you choose to strengthen the right (legal subrogation), it will not be realized because there is no basic right support. Only when the holder of the right of recourse enjoys two kinds of rights at the same time can he decide whether to exercise the two kinds of rights at the same time according to the specific situation in practice, and the purpose of strengthening the right of recourse by legal subrogation can be realized.

(B) Advocacy of the theory that the joint debtor’s right of recourse and legal subrogation are integrated.

1. The basis of integrated application theory

The second paragraph of Article 519 of the Civil Code stipulates that the right of recourse and the right of legal subrogation are applicable as a whole, and its theoretical basis can be summarized as follows.

First, the characteristics of joint and several debts themselves. Although the foundation of joint and several debts is complex and diverse, and there are different opinions, after the establishment of joint and several debts, the effect of joint and several debts is the same regardless of the reasons for its establishment. In external relations, joint and several debts and single debts also have the confrontation of interests between creditors and debtors, which makes it difficult for joint and several debts to get rid of the characteristics of single debts. In joint and several debts, the creditor can choose the debtor to pay off all or part of the debts at will, so each of the joint and several debtors should be obligated to perform all the debts to the creditor. Therefore, each debtor has the "risk" of being asked by the creditor to perform all the debts, and whether or not he is asked to perform and how much he performs depends on the creditor. In other words, all joint debtors have the problem of "luck", and the law cannot rule out luck, but the substantive injustice caused by luck should be reduced as much as possible. In joint and several debts, when the creditor only requests one debtor to perform, the effectiveness of this external relationship is also reflected in the internal relationship, and other debtors should also be in the state of being requested to perform and have the obligation to provide performance; The debtor who is requested to perform may request other debtors to perform their share, and the requested debtor cannot raise the defense of simultaneous performance. Because all debtors perform for creditors, there is no relationship between them in performance. When other debtors fail to pay off, the repayment of debtors exceeding the actual share constitutes the subrogation of other joint debtors, which is also the reason why France and Japan use the subrogation rule to give the right of recourse a legal subrogation. When any joint debtor performs,Whether it is voluntary performance or requested performance, all debtors benefit from its actions, and the cost of its performance should be shared by all debtors. Therefore, for the right of recourse and the basis of its expansion, the theoretical circle mostly expounds its legitimacy by "taking it for granted" or resorting to "fairness". The motivation of "taking it for granted" actually lies in the fact that all the joint and several debtors should fully perform their obligations to the creditors, and the theory of subjective common relationship and mutual guarantee in the basis of the right of recourse are all focused on this.

Even if the joint debtor is not requested by the creditor to perform, it also undertakes the obligation to perform to the creditor in time according to its share and the obligation to assist other debtors to perform. Therefore, some scholars in Germany believe that the right of recourse is attached to the joint debt itself, that is, when the joint debt is established, it has occurred as the effectiveness of the internal relationship of the joint debt, not from the time when the debtor pays off. In other words, performance is nothing more than a condition for the exercise of the right of recourse, not a condition for establishment. According to this view, the limitation of action of the right of recourse and the right of statutory subrogation will converge, but it is difficult to be established in dogmatics. After all, there is no room for the right of recourse when all debtors voluntarily fulfill their share of debts to creditors.

Furthermore, whether in external relations or internal relations, the joint debtor undertakes the obligation to perform to the creditor in time, and if it performs its obligation in time, there is no possibility of recourse; If it fails to perform, it will constitute a breach of contract to the debtor who has performed, and it should be liable for the latter. Although this kind of liability for breach of contract is almost ignored, it cannot be denied that the debtor who pays off is the most worthy of legal preferential treatment, which is not only the reason why the legal subrogation is specially stipulated in the law, but also the core reason why the legal subrogation is used to strengthen the right of recourse.

Second, realize the balance between the interests of the obligee, other joint debtors and creditors. After a joint debtor performs joint debts, it will form a triangular interest relationship with creditors and other joint debtors. First of all, in the joint and several debts, the risk that the creditor cannot be paid off is significantly lower than that of the debt in proportion, but this risk is transferred to the joint and several relationship, and the protection of the creditor is sufficient, so the rights of the recourse holder are irrelevant to the creditor no matter how they are allocated, as long as their rights are not damaged. Secondly, other joint debtors are in a state of breach of contract and should not be specially protected by law. The law only needs to ensure that the right of recourse does not worsen its legal situation, if it does not bear the debts of the expanded part caused by the right of recourse’s own fault. Finally, the right of recourse enjoys the right of recourse and legal subrogation at the same time, only to ensure the realization of his request for apportionment, without harming the interests of other debtors and creditors.

2. Obstacles and overcoming of the theory of integrated application

Through the comparison of the legal effects of the right of recourse and the right of statutory subrogation, it is shown that there are many differences between them in legal doctrine, but there are also many doubts in these theoretical explanations, which need to be clarified when the two rights are applied as a whole, and the following are selected.

The first is the statute of limitations. Generally speaking, the limitation of the right of recourse is calculated from the date of settlement, but there is great controversy about this. German judicial practice adopts the general theory, but it is controversial in academic circles. Medicus believes that the limitation of action that has passed before the original right of recourse against creditor’s rights does not affect the interests of the obligee, which embodies the idea of substantially unifying the limitation of two rights. In Swiss law, unless otherwise stipulated by law, the limitation of recourse is the same as that of joint and several debts, which also embodies the idea of substantive unity. In fact, it is generally said that the prescription of statutory subrogation is the same as that of the original creditor’s right, because it is the inheritance of the original creditor’s right, which seems to be logically smooth, but ignores a key fact: the original creditor’s right has been eliminated because of liquidation and other reasons, just because the law intends it to continue to exist, is it appropriate to calculate its prescription based on the original creditor’s right? Moreover, when the creditor’s rights are eliminated by paying off, the creditor may have made a request or obtained an effective judgment. Should the proposed creditor’s rights be counted from the time when the original creditor’s rights are eliminated?

The second is the reason for refusing the right of claim. Generally speaking, in the right of recourse, the obligor can’t claim all kinds of reasons for resisting the creditor’s right of claim in joint and several debts, but in the legal right of subrogation. This view does not distinguish all kinds of joint and several debts, but deals with them in an integrated way, ignoring the basis of joint and several debts and the imputability of the claimant, which is not appropriate. If the joint and several debts are based on the contract, and the creditor requests Party A to perform all the debts, and Party A knows that the creditor’s rights are in limitation, but fails to raise a defense, it is obviously unfair for other debtors not to claim the defense of limitation when Party A recovers. Another example is that when performing, Party A knows that Party B enjoys the creditor’s right in the form of set-off, but neglects to claim it. At this time, it should be based on the provisions of the law on other matters related to joint and several debts, that is, whether to give Party A the right to claim the creditor’s right of set-off. If Party A does not enjoy this right according to law, it is obviously unfair for Party B to claim the set-off later when claiming compensation from Party B..

To sum up, under the framework of the theory of concurrence of recourse and statutory subrogation, the distinction between the legal effects of the two rights is exaggerated, even in the logic of dogmatism. If we adopt an integrated legal policy and construct the corresponding legal technology, and affirm that the purpose of statutory subrogation is only to supplement the right of recourse, then the two only need to unify the legal effect, and there is no practical obstacle. The core reason of this scheme is to implement the right of recourse and to facilitate operation. In addition, in the case of other competing claims, such as breach of contract and infringement, the significance of the parties’ choice also includes the differences in the proof of constitutive elements in litigation; However, the constitutive requirements of the right of recourse and the right of statutory subrogation are exactly the same, and there is no such problem.

Finally, it is worth thinking about whether the two can be unified into one right, such as the right of recourse to unify the legal subrogation? This is difficult to establish in theory. Because the right of recourse is based on the debt share relationship within each joint debtor, aiming at the relationship between joint debtors; The basis of legal subrogation is that the debtor’s settlement leads to the elimination of creditor’s rights, which is aimed at external relations. If the internal right of recourse does not exist, it is unnecessary for the law to stipulate the statutory right of subrogation. Therefore, the relationship between the two should be treated as: the right of recourse is a basic and independent right, which determines whether the legal subrogation is established and its scope.

(3) the exercise of rights when the right of recourse of the joint debtor is integrated with the legal subrogation.

When two kinds of rights coexist and are applied as a whole, four exercise rules should be followed: first, based on the right of recourse, the legal subrogation strengthens its effectiveness, with the aim of realizing the rights of the obligee to the maximum extent; Second, the obligee cannot make double profits; Third, it cannot harm the interests of creditors; Fourth, it is impossible to increase the burden on other debtors and make them bear more than their share of debts. In the specific application, the following questions are worth considering:

1. The debtor can claim the reasons of resistance.

When it is applied as a whole, the reasons why the debtor can claim to refuse the right of claim should be unified. First of all, the limitation of action should be calculated from the date of liquidation. Secondly, other defenses and offsets mainly involve the rules of other-related validity in joint and several debts, which are too simple in Article 520 of the Civil Code, and need further academic consensus.

The relatively simple way of thinking is to consider the imputability of the reasons why the right of recourse holder did not claim to be blocked when performing. If he did not claim to be at fault, the obligor for recourse has the right to defend him or claim to set off. Although the interests of the joint debtors are opposite, the joint debtors depend on each other in external relations, and no joint debtor can do anything that damages other debtors or worsens their debts. Therefore, Article 146 of the Swiss Debt Code clearly stipulates this. Another way of thinking is to consider turning the defense into a factor that affects the establishment of the right of recourse. The debtor’s failure to claim to the creditor that the defense that all debtors can exercise is liquidation, which will damage the interests of other joint debtors. If the debtor is at fault, it should bear the responsibility; However, the debtor’s liquidation exonerates other debtors. If the former cannot obtain the right of recourse, the legal consequences of its liquidation will not be passed on to other debtors, so it is enough to protect the interests of other debtors by not recognizing the right of recourse at this time.

2. Reinforcing the right of recourse

The reinforcement of legal subrogation to the right of recourse is mainly reflected in obtaining the subordinate rights of creditor’s rights, mainly ensuring creditor’s rights and security interests. However, in practice, this reinforcing effect is mainly applicable to joint and several debts, and it is unlikely that joint and several debts such as infringement will be secured. It can be seen that the significance of legal subrogation is not as great as imagined, and the conflict between the integration and application of the two is also not so fierce.

The "statutory" nature of statutory subrogation is that the obligee can directly obtain creditor’s rights based on legal provisions. In the legal transfer of creditor’s rights, the transferee’s position should not be different from that in the intentional transfer. Therefore, like intentional assignment, when necessary, the creditor should bear the burden of transferring relevant creditor’s rights documents and informing the legal subrogation person of the necessary information (such as security right) to realize the creditor’s rights, so that the legal subrogation person’s rights can be fully realized.

If the creditor abandons all kinds of security rights and priorities or damages the collateral after being paid off, so that the legal subrogation person can’t realize his subordinate rights, which leads to the failure of his right of recourse, should the creditor bear the responsibility? There is basically no provision in civil codes of various countries. In the field of security, Articles 776 and 1165 of the German Civil Code stipulate that if the creditor waives part of the security right, other secured parties can be exempted in proportion. German judicial circles apply these rules to the right of recourse of joint and several debtors by analogy, and think that creditors should undertake to safeguard the interests of compensation against joint and several debtors under the circumstances that the legal subrogation can expect. Swiss law also analogizes the provision of Article 503, paragraph 1, of the Swiss Debt Code concerning the creditor’s waiver of guarantee.

Articles 409, 435 and 698 of the Civil Code respectively stipulate that when the mortgagee waives the mortgage, the pledgee waives the pledge and the guarantor waives the guarantee, other guarantors can be exempted accordingly. Whether these rules can be applied to joint and several debts by analogy mainly depends on the following factors: firstly, the legal subrogation person in joint and several debts receives the original creditor’s right and the security right on it after paying off the debt; Second, when the debt is not fully paid off, the legal subrogation person is still a joint debtor. Therefore, the legal subrogation person can not exercise the security right under any circumstances. Only when the legal subrogation person can exercise the security right and the original creditor damages the collateral, can he claim damages from the creditor.

3. Protection of creditors’ interests

As the French proverb goes, "the right of subrogation cannot be against the subrogated person." The legal subrogation right obtained for any reason cannot exceed the original right in strength and effectiveness, and can not harm the interests of the original obligee. Almost all countries or regions have confirmed this rule in their civil laws, such as Article 426, Paragraph 2 of the German Civil Code and Article 281 of the Civil Code in Taiwan Province, China. Article 519, paragraph 2, of the Civil Code also confirms this rule.

The legal subrogation may harm the interests of the original creditor when exercising the creditor’s rights, mainly when the original creditor is only partially paid off and there is a security interest on the creditor’s rights, and both of them exercise the security interest. At this point, the creditor’s residual creditor’s rights have priority over the creditor’s rights of the legal subrogation. If Party A and Party B bear joint and several debts of 2 million yuan to Party C, Party D provides 600,000 yuan as collateral. Later, A paid off 120 yuan, and obtained the creditor’s right of 200,000 yuan based on legal subrogation. C still has the remaining creditor’s rights of 800,000 yuan. When both Party A and Party C are mortgaged, the creditor’s rights of Party A and Party C will be paid off at the same time because of the insufficient value of the mortgage, and the creditor’s rights of Party C will be paid 600,000 yuan first, but the creditor’s rights of Party A will not be paid off.

It should be noted that the second paragraph of Article 519 of the Civil Code stipulates: "Have the right to recover the excess from other joint debtors within the scope of their unfulfilled shares, and enjoy the rights of creditors accordingly, but shall not harm the interests of creditors." There are two interpretations of this clause: first, the obligee shall not harm the interests of creditors when exercising the statutory subrogation right; Second, when exercising the right of recourse without exercising the legal right of subrogation, the interests of creditors shall not be infringed. The traditional civil law theory mainly discusses this issue in the legal subrogation right, but the right of recourse may also conflict with the creditor’s right. If Party A and Party B bear joint and several debts of 2 million yuan to Party C according to the same share, Party A has paid off 1.2 million yuan, and when claiming the right of recovery of 200,000 yuan to Party B, if all the property of Party B is only 500,000 yuan, at this time, the remaining creditor’s rights of 800,000 yuan of Party C should be paid first.

4. Acquisition and exercise of security rights

According to Article 547 of the Civil Code, the assignee obtains the creditor’s rights as well as its subordinate rights, and the subordinate rights are not affected by the failure to perform the transfer registration procedures or the transfer of possession. When the legal subrogation person exercises the security interest, does it need to go through the change registration or obtain the pledge? First of all, the realization of security interest is not the disposition of security interest, and the provisions of Article 232 of the Civil Code should not be applied, that is, the disposition of immovable property rights that are not obtained by legal acts will not be effective without registration. Secondly, according to Article 410 of the Civil Code, the way to realize the mortgage right is negotiation between the two parties or auction and sale by the court. In the case of negotiation between the two parties, registration is not required; When the court executes the mortgage right based on judicial power, there is no need to change the mortgagee. Undoubtedly, according to Articles 436 and 437 of the Civil Code, the realization of pledge can be started by the pledgor and the pledgee, and when the pledgee starts, especially when the pledgee auctions and sells the pledge, it is inevitable to obtain the possession of the pledge. At this time, the legal subrogation person can directly request the pledgor to deliver the pledge, without going through the original creditor, so as to reduce the performance link, and the legal subrogation person can obtain the pledge on the basis of direct legal provisions.

Different from the subrogation of the guarantor, the legal subrogation person is a joint debtor, and the guaranteed debt may be his own debt. Therefore, when exercising the security right, the legal subrogation person should type the guarantee: first, the legal subrogation person’s own or the third person’s guarantee of his debt share. For this kind of guarantee, the legal subrogation has no meaning to exercise. The second is the guarantee of the debt share of other debtors. The right of recourse can naturally be exercised. The third is the guarantee of the entire joint and several debts. Whether the obligee can exercise this security right depends on two factors: (1) The security is provided by the recovery obligor, such as collateral. The right of recourse can exercise this security right. (2) The guarantee is provided by a third party. Whether the legal subrogation person can exercise the security right at this time depends on the nature of the debt recovered from the joint debtor after the guarantor assumes the responsibility. For example, Party A, Party B and Party C have a joint debt of 3 million yuan to Party D, and Party E is a joint guarantor, with a guarantee scope of 3 million yuan. The share of internal debts of the three people is 1 million yuan, and Party A obtains the right of recourse after paying off 3 million yuan. If there is no agreement between Party E and Party A, Party B and Party C, after assuming the guarantee responsibility, Party E may request Party A, Party B and Party C to undertake joint and several debt recovery, and then Party A may recover from Party E; If an agreement is made, Party A can’t recover from E to avoid a recovery cycle.

Conclusion

German documents often compare the creditor’s status in joint and several debts to "Pascha" to describe the powerful power of its creditor’s rights. In joint and several debts, the risk that creditors can’t pay off is distributed to all debtors to the maximum extent, so it is very important to distribute the payment risk fairly within joint and several debtors. As legal means of risk allocation, the right of recourse and legal subrogation are also very important.

Generally speaking, there is a competing relationship between the right of recourse and the legal subrogation, and the obligee can only choose to exercise it. Paragraph 2 of Article 519 of the Civil Code allows the debtor to enjoy two kinds of rights at the same time, and its legitimacy stems from the legal characteristics of joint and several debts, which determines that the interests of the obligee for recourse deserve special protection. The right of recourse is a basic right, which determines the establishment and scope of legal subrogation. The most important function of statutory subrogation is to enable the obligee to obtain the subordinate right of creditor’s rights, so as to expand the effectiveness of the right of recourse. The limitation of action of the two rights and the reasons for refusing the right of claim can also be unified by legal means.

Shanghai Law Society welcomes your contribution.

fxhgzh@vip.163.com

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Source: Oriental Law, No.4, 2020 (Special issue of Civil Code) (No.76 in total). Please indicate the source when quoting and reprinting.

Original title: Xie Hongfei: the applicable relationship between the right of recourse of joint debtors and the right of statutory subrogation —— Taking Article 519 of the Civil Code as the analysis object.

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　　The state security organs remind netizens to be vigilant, keep their eyes open, recognize the "net hook" routine of foreign spy intelligence agencies, and avoid going astray and endangering national security.

　　After a period of time, the opposite party asked Xiao Zhang for the photos of the new aircraft at the air show. After receiving the photos, the other party further asked Xiao Zhang to take photos of the inside of the unit. At this time, Xiao Zhang suddenly woke up and reported to the state security organs.

　　After investigation, the real identity of the netizen is a member of the overseas spy intelligence agency. The purpose of joining a number of chat groups in the military and aviation fields is to wait for opportunities to illegally obtain confidential information through industry personnel.

　　The state security organs remind netizens to be vigilant, keep their eyes open, recognize the "net hook" routine of foreign spy intelligence agencies, and avoid going astray and endangering national security.