Studies On Systern Of Proceedings For Right Of Subrogation

The system of right of subrogation is a concept in civil substantive laws of continental law systems countries. It is until 1999 our country stipulated the system of right of subrogation in Contract Law that enacted in 1999, regarding as a substantive right as well. However any clause in substantive law always manifests as the general normative proposition, its content shall be manifested in the mean of one by one specific treatment of cases, the content and value of substantive law can gradually formed in the structure of general normative proposition merely upon the proceedings of contentious procedure. Only by the means of proceeds, lawsuit of right of subrogation, can the inner value of system of right of subrogation be realized and developed.This time Contract Law stipulates right of subrogation, but overlooks the procedural mechanism-proceedings for right of subrogation. And in fact in the courses of the fulfillment and exercise of right of subrogation, most problems occur in the aspect of procedure. And with the long time influence of the thought of " laying emphasis on substantive law and giving no credence to procedure", it is inevitable to make the stipulations of system of right of subrogation in Contract Law difficult to implement. This paper tries to probe into the theory and the practice for constructing and perfecting the proceedings for right of subrogation in our country.As a new type of proceedings, the proceedings for right of subrogation inevitably never appeared in the past procedural practice. Although the proceedings for right of subrogation apph'es to ordinary procedures, it has its characteristics. This paper tries to discuss and demonstrate some basic theoretical questions about proceedings for right of subrogation, such as itsconcept, litigious right, jurisdiction, object of action, effective scope of validity of matter adjudged in proceedings for right of subrogation, status in litigation of parties and procedural rights. What's more, this paper raises some unique understandings and thoughts.According to the characteristics of proceedings for right of subrogation, combined with judicial practice, this paper lays an emphasis on the demonstration of procedures of proceedings for right of subrogation, which makes proceedings for right of subrogation become operational. Furthermore, comparing proceedings for right of subrogation with execution of subrogation, this paper holds the two are mutual independent and mutual connecting procedures with their different values, which cannot be partial to and side with each other.