Studies On The Legal System Of Subrogation

Legal system of subrogation which was founded by civil law code of France at first in ]804 services as protection of debt. Mainland in China has not established this system for years. In 1999, legal system of subrogation was introduced by the contract law for the first time, which padded the shortage of protection of debt.What is the foundation and theory of legal system of subrogation? What is the basic meaning of legal system of subrogation in China? Which flaws are in the legal system of subrogation? This paper will discuss these questions particularly from four parts:Chapter One: Study on the Legal System of Subrogation from HistoryThis chapter gives a brief introduction about the origin of legal system of subrogation. Secondly, the author analyses the foundation of the legal system of subrogation from history and reality, and then notes the legal system of subrogation is the result of development of society and economy. It marks people begin to attach importance to not only freedom of transaction but also security of transaction.Chapter Two: Analysis on the Legal System of Subrogation from Basic TheoryThis chapter analyses basic theory according to traditional theory. Firstly, on legal character the right of subrogation is the right that is used to protect debtee and belongs to the basic faction of debt. Secondly, existence of subrogation includes four elements (debtor has right to the third person; debtor uses the right tardily; debtor uses the right lately; creditor's right appears dangerous). Thirdly, the author studies the effectiveness of subrogation concerning debtor, debtee and the third person. Principle of direct returning to debtee is important legal principle, which indicates that applying the right of subrogation do not aim to obtain returning but protects creditor's right and maintain the security of transaction. At last, this paper dissertates the relationship between the legal system of subrogation and relative principle of debt. The author considers that relative principle of debt is still basic principle of debt law. Legal system of subrogation does not deny principle of debt but reinforces it.Chapter Three: Analysis on the Legal System of Subrogation in ChinaIn the first place, process of legislation is studied. Then, the author analyses the elements (creditor has right to the debtor; debtor uses the right lately to the third person and harm the interests of creditor's right; debtor's right does not belong to his own) .Then the author notes the supreme court's interpretation to debtor's using the right lately to the third person is against the aim of legal system of subrogation and the object of the subrogation only includes money which is not good for legal system of subrogation. Meanwhile, the author analyses effectiveness of subrogation in China. The paper points out the basic difference between principle of direct returning to debtee and principle of discharging in China. The right of subrogation in China is changed from protection of debt into method of direct returning. The author thinks it is not correct. At last, the author studies litigation of subrogation from condition and operation from practice.Chapter Four: Improvement on the Legal System of Subrogation in ChinaThis chapter analyses improvement on the legal system of subrogation in China according to actuality. Firstly, the author suggests that system of legislation about subrogation must be improved in order to receive good effect. The base of subrogation should not only include contract but also other forms of debt; Secondly, the interpretation for debtor's using the right lately to the third person is so wide that the system cannot protect the freedom of transaction. And the object of the subrogation's right is so narrow that it weakens the function of protection. So, the author suggests that the object is limited in creditor's right according to actuality. Then, the paper says that principle of discharging in China is not in reason in respect of theory and operation. In the last place, the article considers that we can permit the debtee to claim right directly. Claiming right through lawsuit is not scientific. At the same time we must revert principle of discharging to principle of direct returning to debtee.In the last place of paper, the author considers that we must base ourselves upon national condition when introducing foreign system to China. Principle of direct returning to debtee cannot be changed with ease in order to avoid passive influence.