The Creditor's Right Of Subrogation

The foundation of subrogation by (promulgated in 1999) and (published later) is of historic significance in regarding theories and practices since it fill up the gap in our legistration regarding this problem. However, the existing subrogation system in our country differs from the traditional one in its structure, objects, the way of exercising the right and the legal effects because it confer the creditors upon directly indemnification. This stipulation, in some way, benefits the creditors, but it is contrary to the intention of legistration, logical system, the principal of credit equality and the operability the legistration aimed as well as the compatibility of several laws. Therefore, it is necessary to have a detail discussion about the related problems by historical point of view, value analysis and comparison. This passage will dwell on the said problems and the article will be divided to five parts.Part I: the summarization of the principal of subrogation. This part will focus on the historical change,the origin of formation the nature and the value of subrogation. The principal of subrogation has its root in the Rome Law and the Germanic Law. It began to form a civilization in , spread and perfected in Italy, Japan and Taiwan district of our country. Actually, the development of capitalized commodity economy and the emergence of bona fide doctrine gave birth to the development of subrogation. Historically speaking, the nature of subrogation is always the focus of debates. In this article, the writer believes that it was a special right with the double nature of the right of management and the right of formation. The basic value of it is to preserve the credits.Part II: the composing parts of subrogation. This part will discuss the principal from traditional angle combining with the existing laws in our country. This principal has break through the traditional relativity of the contracts and endue the creditors with rights of interfering debtors'activities. For this reason, the legistration departments shall restrict the composing parts of subrogation so as not to cause inequality. In the writer's point of view, there shall be several necessary parts, including: the existence of the debtor-creditor relationship, the negligence of the debtor to exercise his rights, the retard of the debtor and the necessity of preserving the credit.Part III: the exercising of the subrogation by the creditor. This part is mainly about the subjects, the objects and the ways of exercising this principal. The creditor exercise the debtor's rights in his own name and becomes the subject of subrogation. The traditional civil law has a very general meaning regarding the object of subrogation, as long as those excluding the creditor's own rights. The laws limit the object to those due rights with payment characteristics, which is not beneficial to the protection of creditors. In those actions regarding subrogation, debtors may attend the actions instead of may attend so. And their legal status shall be the third parties without rights of petition.Part IV: the exercising of subrogation. In this part, the author analysises mainly on the effects to creditors by exercising subrogation and the effects to debtors and sub-depots as well. The author will also probe into the binding power of subrogation actions. As the author thinks there are many defects in conferring upon the creditors directly indemnifation, we should persist to the traditional rule.Part V: the perfection of subrogation of our country. This part will only briefly contrast the existing principal with the traditional one and give some suggestion on those adjusting legistration system, the expansion of exercising subrogation, the expansion of the objects , to improve the component and so on.