On Institutional Construction Of Subrogation In Execution

Subrogation in execution means that in the event that a person subject to execution fails to perform the obligations specified by effective legal documents and such person is entitled to the claim against a third party, the court may carry out the compulsory execution against the third party, upon the request from the applicant or the person subject to execution. The subrogation in execution increases the approaches of enforcement of effective legal documents, raises the possibility to be fully compensated by applicants and reduces both phases and cost of litigation. The enforcement of subrogation, however, is based on the compulsory interference by the state with the obligatory relationship between the person subject to execution and a third party who has no direct legal connection with the applicant, which has great effect on the third party. Therefore the core value and merit of subrogation in execution is to fulfill the interest of an applicant at its best under the condition to reduce the losses of a third party at its least. Thus the author points out the theory of equitable interests, that is all elements composed of subrogation in execution should cover the protection of both applicants and third parties so as to reach the equitable balance in the level of legal protection.Then, with a practical attitude, the author argues that the equitable balance within the subrogation in execution has been broken in real judicial practice due to the change of social backgrounds, and the institution is more favorable to a third party than to an applicant. So the author suggests to construct a new institution for subrogation in execution with the kernel as substantial review over the objection from a third party, and based on that, to provide the legal documents and conditions for subrogation in execution.The author uses the comparative approach.while arguing the methods for objection review in the subrogation in China, the author comparatively studies the procedural review, transfer to trail process with competence, following recovery process of subrogation litigation and the objection litigation of third party in civil law system, criticizes and points out defects of all methods mentioned above considering the real practice in China, and finally initiate the model of substantial review by the execution department of court.The most distinguished character of this thesis is combination of theory and practice. The author is engaged in execution in a grass root people's court, and may cases referred in this thesis are true cases handled by the author or the colleague of the author. The author is really vexed by the abuse of right to objection by third parties. Therefore, based on the analysis of interest protection in subrogation, according to the real judicial practice and change of social backgrounds in China, the author points out the introduction of new institution of subrogation in execution with its kernel as substantial review over objection from third party by execution department of court, under the condition that the execution power is divided into the power of enforcement and the power of ordering.