Study On Payment With Subrogation

Payment with subrogation,basically,is defined as that if a third party who has interest on the performance of the obligation has performed the obligation,the third party is subrogated to the rights of the creditor to the amount of the performance.The intention of the system is to reward the good faith of payment with subrogation of the third person,and it is important to protect the common interests of the debtor.Therefore,civil laws of countries and regions of civil law system expressly provide the system.There is no Civil Code in our country,and the existing civil law has no specific provisions regarding the subrogation payment system.Moreover,there is controversy concerned on whether the relevant provisions of the payment system in the academia and practice our country,who don't research the system in specialty.The thesis intents to systematically clean up,and comparatively study on the payment subrogation system,as well as to observe the theoretical foundation of the system in order to present some references for related controversy, practice and legislation of our country.This article is divided into five parts:The first part generally introduces the payment subrogation system.Specifically,it introduces the origin,theoretic value and general legislation concerning the system.Payment of subrogation originated in Roman law on the "beneficium cadendarum actionum","jus offerendi" and "exceptio cadendarum actionum".Subrogation payment system has independent value and function.And it endows the third party pay the debt claims which have secured right to the debtor, so that they can be more favorable in compensation,which encourages the payment of the third person in good faith,promotes the general credit transaction,and without infringing the interests of the debtor.Hence,it is able to balance the interests of the parties.Therefore,major countries and regions of civil law system establish the system.The part mainly introduces legislation of France,Germany,Japan and Taiwan region of China's.The second part is the comparative study on the payment subrogation and the related systems There is a lot of similarity and relevance on payment subrogation,assignment of creditor's rights, compensation subrogation and subrogation rights of creditors.With the comparison of the fore-mentioned systems,the thesis expressly observes the essential character of payment subrogation system.The difference between payment subrogation system and assignment of creditor's rights is that the former one is legal debt transfer and the later one is contractual debt transfer.Payment subrogation and compensation subrogation is belongs to the same legal principle,but in the scope and design of the system on different.About payment subrogation and subrogation rights of creditors,there is just a similar on the name,but the design and functionality of system are not same.The third part of the thesis is the typical analysis of payment subrogation system.According to the legislations and theory of related countries,payment subrogation could be divided into two parts,namely,contractual payment subrogation and legal payment subrogation.Furthermore, contractual payment subrogation could be divided into two parts;those are payment subrogation with creditors' consent and payment subrogation with debtors' consent.This part elaborates legal nature,constitution,legal validity of each forms of the system.The fourth part of the thesis is the general introduction of current legislation of our country. On the basis of brief introduction of legislation,the thesis analyses the nature of compensation rights of guarantor,guarantor with property and joint debtor one by one,hereby,it draws a conclusion that the relative provisions of the current civil law aren't payment subrogation system, but compensation right.In the fifth part,as there isn't payment subrogation system in civil law of our country,the thesis proposes that we should establish the system with the analysis of necessity of establishing the system,history of the system,and legislative proposals of experts.Specifically,we should acknowledge contractual payment subrogation in accordance with functions of contractual payment subrogation and party autonomy.Moreover,based on the further comparison between legal payment subrogation and compensation subrogation,the thesis concludes that we should combine these two systems in Civil Code in future,as legal payment subrogation contains functions of compensation subrogation.