Research Of The Creditor's Subrogation

"Contract Law" of our country promulgated and "The Application of the Contract Law of the people's Republic of China (Part One) stipulated creditor's subrogation. Filling up a permanent space in legislation of our country, the establishment of creditor's subrogation is of great theoretical and practical significance. The subrogation of our country came from from the theory of subrogation of the traditional civil law, but it is great different from the traditional theory. The changes advantaged the creditor, however which are contrary to the intentions of logical system and the purpose for the establishment of creditor's subrogation, legal fairness and justice, legal maneuverability and mutual coordination and unification between laws. Therefore, it is necessary to have further discussion about relevant issues of the subrogation of our country. The paper studies relevant issues of subrogation, especially the issues in the process of exercising right, with the methods of historical review, value analysis, comparative research, case demonstration. The thesis is composed of six parts.The first part is the basic theory of creditor's subrogation, introducing the conception and features, providing a general view of the historical origin and development, nature of subrogation and value orientation of subrogation in 3 aspects. Subrogation which is security of trade, is the result of development of modern commodity economy. It was first established in legislation of Code Civil. Through analysis of the nature, this paper recognizes its "legal" management right. The purpose of its establishment is balancing protection of creditor's benefits and maintaining debtor's freedom, so as to preserve creditor's rights.The second part is the essential element of subrogation. It is necessary to strictly limit elements to exercise subrogation. Abandonment of "element without payment ability", restrictment of the objects of subrogation and abandonment of debtor's late, cause suspicion of hypercorrection for subrogation of our country. Aiming at such a status, this paper suggest essential element of creditor's subrogation of our country.The three part is the scope of enforcement the subrogation. The author analyzes the scope of enforcement the subrogation from the angle of the aim of subrogation system and put forwards some viewpoints.The four part is the manner of enforcement subrogation. The author first introduces the two manners according to theories and legislations of other countries. Our country adopt single-way mode, this manner limits the way to protect creditor's rights. So this paper proposed that our country should adopt the double-way mode to permit oblige to select litigation or enforcement.The five part is the effect of enforcement subrogation. Enforcement of subrogation is legal binding power over debtor, creditor and sub-debtor, therefore this part discusses about the three aspects.The six part is about the legislation suggestions. On the basis of analysis, the author brings forwards legislation suggestions to the creditor's subrogation system of our country from several aspects, and prepares relevant clauses for the future civil code.