On The Subrogation System

The system of Creditor's subrogation is the major content of the preserving measures,Which shows the all-round and careful preservation to the creditor by law. The contract law of the People's Republic of China passed on March 15.1999 prescribed the system of creditor's subrogation,which filled in the gaps of the Chinese law,and improved china's credit preserving system. It is of great current significance to solve the phenomenon of "three-angle debt" generated in the past few years. But because of the simple provisions and contradiction with traditional subrogation theory,it caused a lot of doubts and questions in the learning circle. The author ventures to study and analyze the system of Creditor's subrogation.The comparative law is a very important researching method in the law study. China's Creditor's subrogation was mostly based on the legislation in Japan and Taiwan where there are many doctrines of this theory. With comparison,this paper focuses on bring forward suggestions to complete the system.This article gives an all-round study on the creditor's subrogation system from eight aspects such as the definition,nature,judicial basis,exercising condition,exercising method,effect and issues existing in china's legislation as well as bringing forward suggestions for legislation.The main contents of the article includes:Part I. Legislative base of creditor's subrogation and the legislation of creditor's subrogation system in different countries.For the legislative base,the author thinks it comes from the angle of credit effect. Once the relation of debt exists,the quantity of debtor's liability property is closely linked with the realization of creditor. In order to protect the creditor's interest,the law requires the debtor to exercise his rights in time so as to exercise his ability to pay the debt. Once the debtor fails to exercise his right,the law authorizes the creditor the right of subrogation,which guarantees of the realization of the credit. The author expounds and proves the legislation base of subrogation originated from the basic concept of debtor's whole property serving as a common guarantee of the liability. The author explains the legislation of creditor's subrogation system in different countries. As well as the legal practice in china.Part II. The definition and the nature of creditor's subrogation.In this part,the author brings forward her own opinions on the definition,describes the nature and feature of the credi tor's subrogation and points out the nature of creditor's subrogation is after all am right of management on the basis of a full study to several typical definitions.Part III. The essential elements to exercise subrogation.In this part,the author concludes it in the following five aspects. The existence of legal credit-debit relation between creditor and debtor;the existence of debtor's right to the third person;the necessity for preservation of the credit;debtor's failure to exercise its right and the debtor's delay for performance;among which the author emphasizes the last four points,h'or example,for the object of subrogation,the author describes in detail the insufficiency of the object of subrogation set forth in Article 73 of contract law with a comparison of subrogation objects in different countries.Part IV. The scope for exercising the subrogation.The author analyzes the scope for exercising the subrogation from the angle of aim of subrogation system and put forwards some new viewpoint.Part V. The exercise of creditor's subrogation.The author first describes the two different views on the exercising method,and points out the practical way of lawsuit under the current situation in china,but in the long run,the direct way should be added to the civil code. As the inner value of china's current subrogation system is realized by legal procedures,the author tries to discuss some important issues in the subrogation procedure in order to complete the system and give a full function to it.Part VI. The exercising effect of creditor's sub...