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不真正连带债务理论由德国法学家米塔斯和阿依舍雷率先提出,其理论源头为古典罗马法时期的争点决定制度以及德国19世纪普通法时期的连带责任二分法,其理论基础为连带债务的原因同一说,该理论一度为德国学界和德意志帝国法院所接受,并且为旧中国学说和司法所继受。目前,德国学界通说以债务的同一阶层性说解释连带债务的本质,否认不真正连带债务的理论和实践,德国联邦法院对于该理论亦持保留态度。《德国民法典》关于赔偿请求权让与的规定,能够解决早期学说上多数所谓的不真正连带债务案型。另外,在请求权法定转移或者约定转移的情形下以及具有主从关系的债务不属于不真正连带债务。
The theory of untrue joint debts was first proposed by German jurists Mitas and Ayesheri. The theoretical origins are the system of determining disputes during the classical Roman law and the joint responsibility dichotomy of German common law in the 19th century. The theoretical basis is The same reason for the debt said that the theory was accepted by the German academic community and the German Imperial Court and was inherited by the Old China Doctrine and the Judicial Service. At present, the German scholar said that explaining the nature of joint and several liabilities by denoting the same strata of debt and denying the theory and practice of not really joint and several debts. The German Federal Court also holds reservations about this theory. The provisions of the German Civil Code on the concession of claims can resolve most of the so-called untrue joint and several liability cases in early doctrine. In addition, the legal rights in the transfer of the request or agreed to transfer the case and the debt with the main and subordinate does not belong to the real joint and several liability.