| The subrogation system for obligee(hereinafter referred to as subrogation)originated in France and survives only in some civil law countries influenced by French law.German civil law,which is good at sophisticated thinking,does not recognize the necessity of the existence of this system under the civil law system.In contrast to the German attitude,our civil law and Japanese civil law,which are heavily influenced by German law,have coincidentally shown great enthusiasm for the improvement and development of the subrogation.In particular,during the formulation of China’s Civil Code,the theoretical and practical sectors have engaged in heated discussions on the construction of the subrogation system,and the formulation of the provisions on subrogation in the draft Civil Code has been modified several times,and there are still hitherto many controversies.In the context of Chinese law,a systematic study of subrogation is of great theoretical and practical significance.At present,The civil law community fails to extract a strong doctrine and knowledge system with local characteristics from the practice of subrogation in China,and the study of subrogation in Chinese national law is still at the stage of transplantation and inheritance of the discourse system of foreign law,especially Japanese law,with more attention paid to the concepts and articles of comparative law,and less attention paid to the actual function of subrogation in comparative jurisdiction and the specificity of Chinese subrogation.Accordingly,this paper intend to examine the subrogation system and its theory in comparative law from the dual perspectives of function and system,in an attempt to construct a theory and knowledge system of subrogation that fits in with Chinese practice,while contributing to the implement of the subrogation system in China.Regarding the theory of the origin of subrogation,although there was no subrogation system in the full sense under Roman law,the subrogation system was closely related to the Roman law enforcement system and litigation system in terms of function and partial features,which reveals that we should observe and understand the subrogation system in the multiple contexts of civil substantive and procedural law.The general view that the subrogation system has its roots in the incomplete French enforcement system does not correspond to the actual situation of the French enforcement system.A comparison of the French and German enforcement systems shows that the actual function of French payment garnishment system is sufficient to cover the German collection action,while due to the specificity of French enforcement law and property,French law does not need a non-monetary claim enforcement system similar to that of Germany.The subrogation system under French law is rooted in a unique understanding of the concept of the debtor’s liable property,and such understanding is not universal and is inappropriate as the underlying logic of the subrogation in other countries.The subrogation was introduced to China as a solution to the problem of triangular debts in the economic sphere at a social level,but its institutional roots lie in the fact that the enforcement procedure against the debtor’s claims in China is apparently flawed and the subrogation is used to compensate for the inadequacy of the enforcement system.With regard to the functional theory of subrogation,the functional orientation of subrogation directly affects the setting of its requisites,the boundaries of its effects and its procedural guarantees.Different functional orientations will give rise to different demands for the requisites and effects of subrogation,which in turn asks for the coordination of the corresponding procedural guarantee mechanisms.There are three functional orientations for subrogation in comparative law: the origin function,the conversion function and the liquidation function.The origin function of subrogation lies in the preservation of the debtor’s liable property,the purpose of which is to prevent the debtor’s liable property from being unduly impaired by the debtor’s negligence,thereby endangering the creditor’s claim(hereinafter referred to as the primary claim).From the basic composition of the liability property,the debtor’s claims(hereinafter referred to as the secondary claim)also belong to the liability property.Generally speaking,whether the debtor exercises the claim or not only changes the internal structure of the liability property,while making no difference to the total amount of the liability property,thus there is a logical paradox in the origin function of subrogation.Roman law,and the later German law,don’t recognise the need for creditors to exercise subrogation in a non-default state,while applying the creditor’s revocation right to regulate the debtor’s negligence and default leading to an undue diminution of the debtor’s liability property,when the effect of creditor’s revocation right is comparable to that of the subrogation preservation system.In comparative law,the origin function of subrogation is of little benefit to creditors and is rarely put into practice by creditors.The subrogation in Japan and Chinese Taiwan has been increasingly being converted to preserve specific property claims of the debtor in order to realize the remedy.The conversion function of subrogation has shown an expanding trend in comparative law.However,the expansion makes great difference to the freedom and the security of the transaction of the debtor and can easily lead to conflicts between the subrogation system and other civil law systems.Unless there is a need for special protection of the specific claims of creditors,the appliance of the conversion function shall be strictly limited,allowing limited recognition of the need for the conversion function only in individual cases involving the protection of the creditor’s right of residence.Both the origin function and the conversion function are merely meant to prepare for the compulsory liquidation of the primary claim.So the creditor must additionally claim liquidation from the debtor except the exercise of the subrogation right to satisfy the primary claim.In order to further strengthen the protection of the claims,the liquidation function has been developed in various countries,thus providing a more convenient remedy for the realisation of the claim.France allows creditors to directly satisfy their claims in subrogation proceedings through the mechanisms like adding debtors to the proceedings,while Japan allows creditors to be subrogated and to set off this claim against the debtor’s claim for repayment,thereby achieving the indirect satisfaction of the claim.In order to strengthen the protection of creditors,our judicial practice has created the rule of direct liquidation of subordinate debtors to creditors,thereby achieving the function of direct satisfaction of subrogation rights.The direct liquidation in China is in line with the orientation of the subrogation system in the civil law system and the development trend of the subrogation system in comparative law,and it also forms an effective interface with the existing enforcement system in China,which deserves recognition.In terms of the doctrine of subrogation requisites,they shall be harmonised with the functional orientation.For the subrogation based on the liquidation function,the primary claim must be due and the creditor can only exercise the right on behalf of the debtor within the amount of the primary claim.The subrogation preservation system does not pursue for the liquidation and does not require the primary claim to be mature.The object of subrogation shall be restricted to the claims of the sub-debtor and its security rights.Based on the comparative law grounds,extending the object of the subrogation rights to all rights such as the debtor’s rights in rem,property claims,discharge rights,public law rights and litigation law rights,which don’t fit in with the orientation of our subrogation rights for the purpose of liquidation,and lack the basis in public law and litigation law.So such extension shall be discarded in practice.The criteria for judging the necessity of exercising subrogation in China is closely related to the debtor’s insolvency theory,which originated from Japan and is inseparable from the unique Japanese subrogation system on adjudication.This theory can explain the legitimacy of the exercise of subrogation in the situation where the primary claim is undue,but it will lead to the blurring of the boundary between the subrogation system and the bankruptcy system,and such theory is lack of operability in judicial practice.Thus it is not applicable to the subrogation system based on the liquidation function.The subrogation requisites in China shall dicard the debtor’s insolvency and adopt the theory whether the negligence by the debtor will adversely affect the realization of the primary claim.In practice,if the debtor is negligent in exercising its own claim and is liable to the creditor for delayed performance,the creditor is justified in exercising the subrogation right.In accordance with the theory of adversely affecting the realisation of claims,the exercise of subrogation is not complementary and the creditor is entitled to exercise subrogation even if there is security for the creditor’s claim.In aspect of the theory of the effect of subrogation,there are two competing views on the attribution of the effect: the rule of warehousing and the rule of direct liquidation.The warehousing rule was introduced into China via Japan,and the rule is inherently consistent with the origin function and the debt’s insolvency.However,the rule was discarded by China’s subrogation judicial practice.China adopts the direct liquidation rule,which has been challenged by the warehousing rule: it is considered to create a priority for creditors and undermine the principle of equality of claims.In practice,however,the principle of equality of claims does not exclude the arbitrary satisfaction of debts,nor does it exclude individual claims from obtaining de facto preferential satisfaction through compulsory enforcement.In the event that the debtor’s property is insufficient to satisfy all claims,the institutional arrangements that guarantee the principle of equality of claims are the bankruptcy system and the system of participation in distribution by enforcement,apart from which there is no such civil law system that can guarantee equal satisfaction of all claims.The creditor’s exercise of subrogation rights is subject to the fact that the debtor is not under insolvency proceedings,so the rule of direct liquidation is not contrary to the principle of equality of claims,and it does not create priority among creditors.The direct liquidation rule is supported by jurisprudence based on the doctrine of liquidation of debts.In the direct liquidation rule,the creditor’s claim is extinguished by the third party(sub-debtor),and the debtor’s sub-claim is simultaneously satisfied for obtaining the interest from the liquidation by the sub-debtor.There is no need to resort to the offset system,so the direct liquidation rule can be fully justified in the obligation law system,and it belongs to the indirect liquidation that does not require the warehousing rule and offset rule.The rule of direct satisfaction shall be applied separately according to different dispute processing stages,among which "the debtor’s counterparty shall perform its obligations to the creditor" only involves the trial stage of subrogation disputes,and whether the subordinate claims are taken for preservation or enforcement measures does not affect the creditor’s successful judgment.After the creditor accepts the performance,the rights and obligations between the creditor and the debtor,and the debtor and the counterparty shall be terminated" only concerns the execution stage of the subrogation dispute,and whether the subrogation is preserved or enforced will affect the realization of the successful subrogation judgment.The enforcement stage of subrogation dispute is essential to settle the debtor’s debt to the creditor with the debtor’s sub-claims.When multiple enforcement procedures are directed to the same claim,it constitutes a enforcement concurrence,and should be handled respectively in accordance with the principles of priority and equality,distinguishing whether the debtor is a legal person.In the event that the debtor is commenced bankruptcy proceedings,the subrogation dispute proceedings shall be terminated;the execution of the subrogation judgment obtained by the creditor shall also be terminated,and all creditors shall participate in the liquidation according to the bankruptcy proceedings;however,the executed subrogation judgment shall in principle not be affected by the bankruptcy revocation right.Concerning the subrogation lawsuit theory,subrogation rights on the basis of a liquidation function may face more complex issues in terms of the procedural law.The subrogation action is in appearance a claim for performance,while presenting certain characteristics of actio confessoria and action for change,In the meanwhile,the subrogation action involves a special litigation undertaking,as there are conflicts of interests between the creditor as the litigation undertaker and the debtor as undertaken-person.“subordinate debt relationship” shall be the only subject of subrogation action,but other creditors shall be entitled to file subrogation lawsuits at the same time or successively to protect their interests,and at the same time,in order to avoid conflicts between subrogation lawsuits and the primary claim lawsuit,the debtor shall be added to the lawsuit,improving the standard of the requisites of a subrogation action.That The creditor files a subrogation lawsuit won’t lead to the effect of sub-claim freezing,so as to avoid the conflict with the preservation system under the procedural law.The direct liquidation function of subrogation in China is similar to the collection action in the enforcement procedure,but it is essential to introduce the collection action in China’s civil enforcement law in the future.Under the parallel mode of subrogation lawsuit and collection lawsuit,in order to maximize the advantages of their respective systems,different types of disputes and litigation scenarios shall be combined to fine-tune the interpretation of the two systems,so as to reduce the system interlocks and conflicts,more effectively protecting the realization of claims. |
