On The System Of The Creditor's Right Of Subrogation

As we all know, the contract law of our country was carried through summarizing long-lasting judicial experience and absorbing foreign advanced jurisprudence theory. The law of our country such as contracts save system adopted some juristic system firstly; on the one hand, it enriched and developed contract law regulations; on the other hand, because of the shortness of practice as the foundation, there is a lot of dissension on the theory and is not operative in the practice. Subrogation rights of debtor system were obvious example.Through carefully studying the contract law of the Common Law country and mine, analyzing the different stipulation on the subrogation rights of debtor system other countries, and integrating the new viewpoint at present, I give out my own viewpoint on the theory in order to found an intact and rational frame.For this purpose, I dissert through the following four hands:In the leading words, I discuss from the theorial and practical value of Subrogation rights of debtor system and point that the purpose of my research is to promote this theory into proper use in the judicial practices.The first sector is about the general comment on this system, mainly deals with the history and social functions of this system, In history, I think Subrogation rights of debtor system originated from Roman law and Roman law. Then many other countries also set up this system. In china, we take many steps and make many tryings. To social functions, I think Subrogation rights of debtor system has the functions of maintaining the relations between the debator and the creditor, booming economy and saving judicial resources.The second sector is about the general theory of this system. I illustrate on Subrogation rights of debtor system from the substance hand, including the definition, nature, elements and its validity. I analysis the definitions given by some jurisprudents and give my own opinion on its definition, portraits and make a distinction between it and some relevant concepts. To its nature, I hold that Subrogation rights of debtor system is a kind of substantial right instead of a affiliated right, nor claim right or formation right. It expresses the outer founction of creditor' right. It needs some elements, including the creditor has objective, real, and legal effective right against the debator, the debator is idle in assuming right against the subdebator, and the creditor is facing the risk of unable to realizes his right. The legal validity of exercising the Subrogation is that it restrains the right of the debator. To the subdebator, I think we should break the traditional confiscation rule, he should clear his debt to the creaditor instead of to the subcreditor. He can also raise an objection to the creditor. To the debator, he can gain directly from the subdebator, and can ask the creditor to pay off the money he pay or directly from the realized debt.The third sector is about the exercising of Subrogation rights of debtor system. I explain the realization of this system mainly from the procedures side. To the participant I hold that the creaditor brings a suit as plaintiff because he has the benefit of the suit; the debator dose not have to take part in the suit; if he dose, the identity is determined subject to the concrete situation; The sues brought by some creditors can be a whole one based on the conditions. If the creditor brings a Subrogation suit, he must first sue the debator. The jurisdiction of subrogetion is normal district jurisdiction. The effects of agreement on jurisdiction and arbition agreement are not fixed. The three sides in the subrogation suit must have their own testimonial responsibility. The subject of the trial is the debt between the debator and the subdebayor, but the object includes the three sides.The fourth sector is about the improvement of this system. I firstly tell the necessity and possibility of improving this system for the sake of the present conditions both in theory and practices of china, then I point out the problems existing in this system, then give my law thinking.