Discussion Of Several Issues Of Creditor's Subrogation Rights

The "Contracts Law" is promulgated in 1999, and later, the " views explanation of Contracts Law" provides subrogation right on creditors. Subrogation is an important theory in the creditor's rights system. after the "Contract Law", especially the implementation of the relevant judicial interpretations, as a brand-new system, compared to other countries and regions, the creditors subrogation rights system has distinct characteristics in our country, the establishment of creditors subrogation rights fills the legislative gaps in our country, it has important theoretical and practical significance. In the actual economic life, some debtors have no objection to the debts, they recognize that they have obligations to creditors. But they often dodge the creditors, they say to have cash flow difficulties, temporary unpaid capacity. For the third debtors, the creditors don't exercise their rights due to the interests, so they damaged the creditors rights and the normal functioning of the socio-economic order.In order to solve the problem, "contracts law" created the creditors subrogation rights system in our country, as a useful way, it will promote the facilitate transactions and the transactions security, stability. However, it is different from the creditors subrogation rights in the current legal framework to the creditors subrogation rights in the traditional civil theory. So it is necessary to study related creditors subrogation rights issues.In this paper, the author discuss the nature and the establishment elements on the creditors subrogation rights, the exercise of the creditors subrogation rights, the litigation of the and so on. The author attempts to card the logical order of the creditors subrogation rights, build legal system on creditors subrogation rights in our country, and protect the legitimate rights of creditors.The present dissertation includes three chapters and a conclusion:Chapter I. The nature and establishment elements on the creditors subrogation rightsIn this part, the author discusses ten theoretical doctrine on the nature of the creditors subrogation rights,then the author put forward his views. According to "interpretation of the Contracts Law", the author studies the establishment elements on the creditors subrogation rights, according to the characteristics of the creditors subrogation rights, the provisions of the legitimate elements is necessary, the legitimate creditor's rights should also include the third debtor. It is the debtor should be able to exercise their rights but not timely that debtor doesn't want to exercise their creditor's rights, as long as the debtor is not fulfilling the obligations, creditor's rights failed, the creditors will be regarded as a damage. The author believes that the creditors subrogation rights against the debtor's negative damage,creditors should exercise the right after the performance of the expiry, in addition to the preservation act. The creditors shouldn't exercise the rights that belong to the debtor's own claims, which is the consistency provisions of national legislation.Chapter II. The exercise on the creditors subrogation rightsFirst, the author studies exercise way of the creditors subrogation rights, it is provided by all national legislation, the general civil rights can be exercised in two ways, they are litigation and the Path to form. The author agrees litigation to exercise subrogation rights. The exercise of the subrogation rights in direct way is not only no guarantee, but also can not effectively prevent the abuse of creditors subrogation rights and the various unnecessary disputes. Then the author studies the scope of the exercise on creditors subrogation rights. According to the spirit of right and equality, the relativity principle of contract and the relativity principle of debt, not only creditors can not exceed the amount to debtor's rights,but also creditors can not exceed the amount to the third debtor,otherwise, it would be contrary to the civil law concept of equal rights and lead to the abuse of power, the detriment of the debtor and the debtor's legitimate interests. Finally, the author studies the effectiveness of exercise on the creditors subrogation rights. In the subrogation rights litigation , the third debtors fulfill liquidation obligations to the creditors, creditors and the debtors, the debtors and the third debtors corresponding relationship are becoming eradication. In the subrogation rights litigation, the outcome of the creditors exercise rights will inevitably produce binding on the debtor, in the scope of the request exercise, as the debtor personally advocated the same right. The debtor can not seek other legal relief about the judgement has been sued. Once creditors exercise the subrogation rights, creditors and the third debtors will occur the subrogation rights litigation, the third debtors should participate in the proceedings as a defendant.Chapter III. The litigation on the creditors subrogation rightsIn this part, the author clarified the creditors, the debtors, the third debtor's legal status in the subrogation rights litigation, the subrogation rights are the direct provisions from the law, so the creditors should be the plaintiff litigation status in the subrogation rights litigation. The debtors are non-independent request third party to participate in the proceedings, and the third debtors should be the defendant legal status in the subrogation rights litigation. Then the author studies the debtor's burden of proof and the third debtor's right to plea in the subrogation rights litigation. According to the debtor's special status in the subrogation rights litigation, if the debtors participate in subrogation rights litigation, then it was his duty to prove the creditor's rights sources, dates, the amount of the creditor's rights, and other related matters. In the subrogation rights litigation, as a defendant, the third debtors enjoy full defence to safeguard their rights. The third debtors may contest because of the lack establishment elements. Finally the author studies the effectiveness of creditors subrogation rights litigation. Creditors exercise subrogation litigation, if the debtors filed ordinary litigation, it should be subject to the reality constraints in the subrogation rights litigation. The subrogation rights litigation that creditors are plaintiff, the third debtors are defendant has res judicata to creditors, debtors and the third credtior.