| The essence of the theory of imperfect obligation in solidum does not lie in the theory itself, but in the idea of separate regulation implied in the theory. The idea of separate regulation has been deeply rooted in the theoretic tradition of the civil law system. The development of this idea represented by the theory of imperfect obligation in solidum is always focusing on a constant but also changeable concept, that is, the “identity” of several debts. The queries and critiques in many countries on the theory of imperfect obligation in solidum cannot deny the reasonableness of the idea of separate regulation, especially the new doctrine of hierarchical division. The high degree of compatibility between the doctrine of hierarchical division in Germany today and the experiences from the judicial practices in our country shows that the doctrine has a broad base in practice. But in the same time, a doctrine of broad and unified solidarity including the imperfect obligation in solidum is also increasingly becoming a trend of theoretic development in many countries.Confronted with these two opposed situations, i.e., “separation” and “unification”, the correct attitude should be promoting the integration of them actively. The traditional program of separate regulation should be innovated and improved with the doctrine of hierarchical division under the mode of the broad and unified solidarity. Under this program, to identify whether several debtors is on the same level or not, the subjective and objective factors of each cause of debt in conjunction with the legal policy and the social ethics should in most cases be considered. Moreover, in order to limit the drawbacks of the arbitrary choice rule of the solidarity, the rank-rule of the subsidiary can be drawn on appropriately in the phase of adjudication and execution of the imperfect obligation in solidum. |
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