Reflections On The System Of Subrogation Of Creditors In China

It is generally considered that the subrogation system originated from the Civil Code of France, thereafter it was setup in Spain, Italy, Japan, the Taiwan region and many other countries or regions. In 1999, the mainland, China promulgated "Contract Law" which established the subrogation system, and the "the Explanations of Contract Law" was introduced in the same year, both of which provided the systemic and specific rules of the subrogation system. Traditional subrogation system was set to preserve the debtor’s liability, guarantee the creditor’s right of claim for the liability, and thus had the function of debt preservation. The biggest one of characters of the traditional system is that it broke through the relativity principle of obligation, provide creditors the rights of claiming for their rights from the third party though litigations or non-litigations; What’s more, it established the "rule of warehousing", thus ascribed rights that debtors fail to claim for to its property of duty. However, the subrogation system in China’s mainland did not use the "rule of warehousing ", however, China’s mainland legal system made strict limitations on the object of subrogation and the way of exercising subrogation, making the function of the subrogation system in China’s mainland more connected to the direct realization of the creditors’ rights. However, with the continuous development of social economy, the relationship between the civil and commercial parties has becoming more and more complicated, and we have got every reason to wonder whether the out of date rules set up according to the domestic situation of last century can adapt to the development of modern society, which should be taken into account. This academic dissertation will demonstrate the necessity and feasibility of perfecting the system of subrogation in China’s mainland through comparing subrogation systems in China’s mainland and other regions and countries, combine with the theoretical controversy of subrogation system in our country and problems of applying in judicial practice.This academic dissertation is mainly divided into four parts. The first chapter will make the general exploration of the basic concept of subrogation, and introduces the origin of the subrogation system through the analogy of existed related theories. Then it summarizes the nature of subrogation, from four aspects, as it is a kind of rights in substantive law on management of property rights, rather than procedural rights, nor the agency.Then in the second and third chapters, it will list the regulation and characteristics of subrogation system in various countries（regions） by using the method of comparative study. After that it expounds the legislative characteristics of subrogation system in our country, such as the narrow scope of object, the tough provisions on the components of the subrogation, including the analysis of four aspects:the legal right of the creditor to the debtor, debtor’s idle of exercising the right that makes the damage to the creditor, the expiration of right of the obligor, the unable of exercising the right of subrogation that is exclusive to the debtor, the single way of excising, breaking the "rule of warehousing", in order to reflect on our country’s enactment of subrogation system. Then the evaluation and discussion will be made on subrogation system in our country and on the problems and difference of the object, way, and attribution in the process of implementation.The fourth chapter will analyze the widening of application of subrogation system in judicial practice by the usage of several judicial cases, in order to demonstrate the necessity of perfecting our country’s subrogation system, and summarize and analyze the condition, feasibility and limitation of application in various situations, such as the feasibility of applying subrogation in advance-notice registration system of commercial housing mortgage, the rationality of the establishment of the rules dividing property of the debtor and other co-owners by subrogation to ensure the realization of creditor’s rights, the analysis on basis of the medical institutions claiming for rights by subrogation in medical service contract disputes and so on. After all, from all analysis of the cases above, the dissertation would put forward the method to improve the subrogation system. For example, expanding the scope of the object of the subrogation exercising, using different rules under different circumstances, having different limitation on the exercising of the subrogation, in order to achieve effective guiding lines for the future judicial practice, to resolve the disputes among the parties more easier, to improve the efficiency of litigation and make the civil law protect individual interests of all parties in a fair justice.