Study On Discharged Firstly Of Firstly Of The Debt Preservation

The debt preservation system has existed for a long time, including the right of subrogation and the right of rescission. It is the civil law system that preserves debtor's responsible property to ensure that debt can be paid off. The Contract Law of PRC which was established in 1999 confirmed the debt preservation system. The Supreme People's Court provided details to this system according to judicial interpretation soon after. This is the first time to establish this system, and the judicial interpretation of the Supreme People's Court brings some breakthrough to the traditional right of subrogation theory so that the creditor is repaid directly. Therefore, it leads to the argument among Chinese scholars. Chinese law formulates the right of rescission following the traditional pattern. However, with the application in real life, some scholars suggest that the right of rescission should be discharged firstly the same as the right of subrogation.Should both the right of subrogation and the right of rescission are discharged firstly based on the actual situation in China? Can creditors in china be protected effectively under the rule of priority of claim? With above-mentioned questions, this paper will study the right of subrogation and the right of rescission deeply by means of historical expedition, value analysis and comparative study, and try to explain what kind of character the debt preservation system in china should have according to objective situation in china. For this purpose, this paper will expound from the following three aspects:Firstly, the value analysis of debt preservation system, this part elaborates from the basic theory. After introducing the origin of this system, other countries' related Legislation and the legislative process of debt preservation system in china, this paper compares traits and constitution elements of both the right of subrogation and the right of rescission to clarify the difference between these two systems. At last, this paper analyzes the value orientation of the debt preservation system to comprehend the debt preservation system in china better.Secondly, analyze that the right of subrogation is discharged firstly. The exercise effect is the kernel of the right of subrogation system. This section lists three kinds of theories about the exercise effect of the right of subrogation in the beginning. Then it summarizes that the right of subrogation should be discharged firstly at present in china, by way of comparing and analyzing characteristics and the object range between two kinds of mainstream theories and stating the specific reason why the right of subrogation is discharged firstly in china.Finally, analyze that the right of rescission is discharged firstly. Facing some scholars'disagreement,this part commences form the theory about initial mind of establishing the right of rescission and the theory about characteristics, and develops the meaning and the function of the right of rescission in order to explain that the right of rescission should not be discharged firstly. Under the rule of putting in storage, the effect that the right of rescission imposes on the creditor and the debtor supports this paper's viewpoint that the right of rescission should return to the rule of putting in storage from a practical point of view.