Research On Certain Problems In The System Of The Creditor's Right Of Subrogation

The right of subrogation, clearly prescribed in the contract law of the people's republic of china passed on March 15,1999,fills the blank of the system for the theory of civil law and breaks the boundary of certain traditional theories in this aspect. Through hard research and analyzing the different stipulations on the subrogation rights of creditor system between China and other countries, the author gives out some viewpoints on the theory in order to found an intact and rational frame.The main contents of the article includes:Part one: Nature of the creditor's subrogation. The author discusses it from legislative base,specific legislations in different countries and subrogation functions . For the legislative base, the author thinks it originated from the basic concept of debtor's whole property serving as a common guarantee of the liability. Once the relation of debt exists, the quantity of debtor's liability property is closely linked with the realization of creditor. In order to protect the creditor's interest, the law authorizes the creditor the right of subrogation. With the practice in Japan and Taiwan of China, the legislation base of subrogation has new developments. The author explains the legislation of creditor's subrogation system in different countries, as well as the legal practice in china.Part two: The essential elements to exercise subrogation. In this part, the author concludes it in the following four aspects. The existence of legal credit-debit relation between creditor and debtor; the existence of debtor's right to the third person; the necessity for preservation of the credit; debtor's failure to exercise its right and the debtor's delay for performance; among which the author emphasizes the last three points. For example, for the object of subrogation, the author describes in detail the insufficiency of the object of subrogation set forth in Article 73 of contract law with a comparison of subrogation objects in different countries.Part three: The exercising methods and the scope of creditor's subrogation. Firstly the author describes the two different views on the exercising methods and points out the practical way of lawsuit of the current situation in china, but in the long run, the direct way should be added to the civil code. Secondly the author analyzes the scope for exercising the subrogation from the traditional system and the practice in our country. The author points out the rationality of the stipulations in china.Part four: The effect of creditor's subrogation. The author analyzes the difference between the "Warehouse Rule" and the "first-hand discharge Rule" in details.Part five: Some problems in the subrogation procedure. As the inner value of china's current subrogation system is realized by legal procedures, the author tries to discuss some important issues in the subrogation procedure in order to complete the system and give a full function to it.