On Right Of Subrogation

The system of right of subrogation, since initially established in France Civil Code 1804 hereafter, is gradually accepted by many countries and gets its development and perfection. It plays vital roles in protecting the creditor's benefits and interests in the realistic living. The system of 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 of civil litigation in our country and is a great break-through for the theory of civil law. The provisions involving execution procedure in the precedent civil procedure law, are unable to adapt to the actual need of protection for the creditor's interests.Should the debtor not pay off the debt to the creditor but be idle to exercise the right resulting in damages to the creditor's right to be realized, the creditor's interests, without the responding provisions of legal guarantee, hardly procure legal guarantee, the establishment for the system of right of subrogation has the positive meaning to protect the creditor's legal rights, to promote the development in order of market economy and to perfect the theory of law of the creditor's right in our country. Particularly, the important function is made for the solution of such problems as the "difficulty of carry-out " and "triangle debts", and again provides a sharp weapon for the creditor to support the self-interests.Due to the fact that the theoretical study on and practical experience in the system of right of subrogation in our country is lack and void, it is necessary to make comparatively all-round statement of the relevant system of right of subrogation.In the respect of research methods we cannot cling to the traditional theories on right of subrogation, but, in accordance with realistic status quota of our country, explore and search the rules of right of subrogation responding to the actual condition of our country. The provisions concerning right of subrogation the Judicial Interpretation of the Supreme People's Court for the Contract Law, on one handsucceeds and refers to the traditional theories of right of subrogation; on the other hand, breaks the boundness of certain traditional theories of right of subrogation with certain maneuverability. But it is still no enough protection and a lot of concrete problems not to be involved. In view of this, this text attempts to make some study of such as the concept, nature, characteristic, value existing, essentials of establishment, effectiveness to exercise and the object of right of subrogation, with the hope of the re- contruction of the system of right of subrogation in conformance with the condition of our country, with the break-though of the traditional theories of right of subrogation.