| The thesis is composed of five parts which is armed at discussing the legal effects of creditor's subrogation.The first part: the general outlines of the items concerning the legal effects of creditor's subrogation.In order to discuss what legal effects of creditor's subrogation should be set forth in detail, we should know the history, legal nature, legislation intents, functions and theoretical values of creditor's subrogation, and difference compared with similar systems, which has a close relationship with the legal effects of creditor's subrogation. The general outlines of aforesaid contents have been made in this part, focusing on comparing creditor's subrogation with subrogation after payment, authority of agency, transference of creditor's right, subrogation execution, and the legal effects of creditor's rights to ask for payment, and upon discussing the theoretical nature of creditor's subrogation exceeding debt's relativity from the aspects of safty of transaction, bona fide and fairness principle.The second part: The exploration of the object scope of creditor's subrogation.The specific legislation intent of creditor's subrogation directly determine what specific legal effects of creditor's subrogation can be provided for, thus appropriate object scope should be set forth. The reasonableness of the legislation intent and its social functions of the creditor's subrogation will be examined by studying the object scope of subrogation.The creditor's subrogation of our Contract Law is only aimed at keeping the debtor's monetary reimbursement capability and getting creditor paid off through asking for the third person to pay to creditor. Hence the object of subrogation is limited to due debt in money in the Interpretation of Contract Law, which is unreasonable, because it is easy to produce social unfairness and reduce the debtor's opportunities to receive subrogation. As for the object of subrogation, it is more appropriate to followthe traditional theory and legislation. Departure from keeping the debtor's liability property and avoiding excessively interfering in debtor's freedom of property disposition, all kinds of property rights belonging to the second creditor's rights and subject to the second creditor's rights are the objects which creditor can subrogate.The third part: The legal effects of creditor's subrogation upon creditor.This part mainly discuss two issues: (1) Several theories about the legal effects of creditor's subrogation upon creditor, (2) The specific legal effects of creditor's subrogation upon creditor.The forth part: The legal effects of creditor's subrogation upon debtor.Five issues are discussed in this part: (1) The legal effects of creditor's subrogation belong to debtor, but creditor has the right to receive payment and be paid off which means that the creditor clears up the debt debtor owing to him and the second debtor owing to debtor with in the amount creditor being paid, which is the same as debtor receiving the debt property from the third person and then paying to creditor. (2)From the economic efficiency point of view, the debtor's right to dispose of his property should be limited. (3)During the subrogation, the court can conduct a consolidated action if debtor still ask for his own debtor to pay him off. However, the requirements of creditor should be satisfied in the first place. (4) The debtor should be the third party to action when creditor conduct subrogation by way of lawsuit, because the debtor is the crux of the legal relationship between creditor, debtor and the second debtor, and debtor's participation contributes to the ascertainment of facts, and debtor has separate substantive rights and can defeat creditor and second debtor. (5) debtor can exercise his demurrers when creditor conduct subrogation.The fifth part: The legal effects of creditor's subrogation upon the third person.This part mainly focuses upon two issues, (1) The third one's duty to fulfill his obligation, and (2) The third one's right to demur.Because the... |
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