On The Study Of The Creditor's Right Of Subrogation

As an institution of credit preservation, subrogation originated from the right of revocation in ancient the Roman Law. Later, it was prescribed as Statute in some civil law system countries, China included, following the Civil Code of France. The existence of Subrogation has become a focus of dispute among scholars in that it breaks through relative legal relationship concerning credit and not every country adopts it. The author argues that compulsory enforcement cannot substitute subrogation. Further improvement of subrogation is suggested from the perspective of harmonizing contract law with civil procedural law. The thesis mainly discusses subrogation in four parts.In the first part, the author introduces the definition, different regulations in various countries, root of the institution as well as the value. With the development of social economy, subrogation came into being to maintain the security of transaction and protect the interest of the creditor.In the second part, the author explores the constitutive elements exercising and functional development of subrogation. If a debtor is indolent in exercising its matured creditors rights and thus causes losses to the creditor, the creditor may apply to a people's court to subrogate the debtor's rights and exercise them under the creditor's name. In Japan and Taiwan area, the function of subrogation has two tendencies: one is that property preservation develops into credit restitution, the other is that monetary credit preservation develops into specified credit preservation.In the third part, the institution of subrogation in China is discussed; the author compares the institution in China with that in other countries and concludes its merits. Subrogation in China converts traditional warehouse rule to first-hand discharge rule and entitles the creditor priority of claim, which constitutes the biggest difference with the traditional institution of subrogation. The conversion effects equity of credit and inherent harmony of credit preservation. Furthermore, there are various problems in litigation that makes it hart to go with the original intention of legislature.In the fourth part, the author points out that the institution of subrogation of China exists with practical significance and needs perfecting. It is suggested that traditional warehouse rule restituted and the scope of subrogation object enlarged. It is wise to combine subrogation with preservation act to make full use of the preservation function of subrogation. Besides, combined with subrogation, subrogation of payment should be enforced to secure the creditor the right of subrogation through the perfection of related prescriptions of civil procedural law.