Research On The Subrogation Of Litigation

Right of subrogation is a definition of civil substantive law in continental law system countries. Since the establishment of the subrogation system in"contract law"of China, the substantive law scholars have already done comparatively deep research to it in terms of substantive law. But the clause of any substantive law is always shown as the general proposition of standardizing, and its content have to through or in virtue of concrete treatments of case can be show. The content,value of the substantive law could be sharpen gradually in generally standardizing frame of proposition in virtue of the going on of contentious procedure, and, the inherent value of subrogation system should apply to contentious procedure, namely, subrogation of litigation to realize and launch promptly as well. So, as a new litigation system, the creditor's subrogation of litigation should be paid more attention. But, because the wrong thoughts of"think much of substantive law, make light of procedure law"have existed for a long time, the regulations on right of subrogation of"contract law"have ignored the procedure mechanism of realizing right of subrogation again——subrogation of litigation, but there are many doubtful points about relevant judicial interpretations of the Supreme People's Court. At present, the academic circles have not paid enough attention to this; it is very strange to accept subrogation of litigation for judicial practice. There are a lot of theories and practice problems about subrogation of litigation are waiting to solve.This dissertation is on the basis of fully using for reference about legislative experience of subrogation of litigation abroad, combine the judicial practice on subrogation of litigation closely in our country, has carried on some preliminary discussions on the issue about subrogation of litigation and has put forward the corresponding legislative suggestions. The main opinions of this dissertation are such as follows : Litigation by creditors according the right to subrogation is based on the"litigation benefit"of creditors. The object of litigation according to the right to subrogation includes the creditor's claim to the right to subrogation and legal relations between the debtor and the subordinate debtor. The rights of the creditor and debtors in the proceeding should be restricted to a certain extent .All creditors, debtor and subordinate debtor should subject to the judgment. Therefor the creditor may participate in the proceeding as if he is the third person who has no independent right to claim, and have the rights and obligations of the parties concerned.In China law, there are several defects existing in subrogation of litigation. Necessary amendments and improvements should be in order to have subrogation of litigation legally functioned to the maximum extent.