Researches On The Creditor's Subrogation Right System

In China, the creditor's subrogation right system was firstly confirmed in contract law of P.R.C., which was issued in 1999. The prescription of the creditor's subrogation right system makes up the blank of civil law system and is of great meaningful in both theory and practice.The creditor's subrogation right system in contract law is not defined concretely enough for the practical use. For the deficiency, the Supreme People's Court interprets the creditor's subrogation right system in detail through the relative judicial interpretations. The judicial interpretations break through the traditional subrogation right theory by changing the traditional rule of warehousing which is prescribed under the current legal frame into direct compensation of the creditors and makes differences in the constitutive elements, objects, modes of application and legal effect from the traditional creditor's subrogation right theories. These differences could gain more value on the protection of the creditors, but contradictions to the logical system and the goals of creation of the creditor's subrogation right system, the legal justice, the operability of legislation and the harmonization of the relative laws are also brought to us.The questions that whether the subrogation right defined by the judicial interpretations really be equal to the one which is prescribed in the civil law, whether the existence the subrogation right system shall be necessary and where the direction of the future civil code is would be discussed in the paper. The author shall analyze the subrogation right theories both in the Chinese law system and the continental law system by the methods of value analysis, historical investigation and comparative study. The creditor's subrogation right systems in different countries will be analyzed and the different viewpoints and suggestions in the field would be listed in the paper. In order to create the comparative reasonable and integrative creditor's subrogation right system, the author also does researches into the disputes and the opacities of the subrogation right problem. There are five parts as follows:I . The basic theory of traditional subrogation right system: In this part, the basic theory of traditional subrogation right system shall be analyzed and discussed, based upon the studies on the origin, the value orientation, the legal character of the subrogation right and the tropical legislative cases.II. The summary of the subrogation right system in China: Firstly, the author reviews the development of the subrogation right system in China. The Chinese legislative character would be summarized then. At last of this part, the basic prescriptions of the subrogation right system shall be given from the aspects of the object, the subject, the exercising condition, the scope and the validity of the creditor's subrogation right.III. Researches on the differences between the subrogation right system in China and the traditional one: Based on the conclusions from the discussions in the last two parts, the author enumerates the differences between the subrogation right system in China and the traditional one and analyzes the original reasons of the differences.IV. Deficiencies of the subrogation right system in China: By analyzing the practical cases, the author summarizes deficiencies of Deficiencies of the subrogation right system in China and the problems brought by the deficiencies of the subrogation right system are shown in this part, too.V . Improvements on the creditor's subrogation right system : As the deficiencies of the creditor's subrogation right system in the fourth part are clearly stated, the author presents the necessities and the possibilities of the improvement of the subrogation right system in the economical life. Further more, in order to enhance the feasibility of the subrogation right, the author gives her final suggestions on how to construct and improve the subrogation right system in China.