Subrogation Comparative Study

Creditors' right of subrogation, which is the important part in the theory of the Law of Contract, is new set up in the Contract Law that brought into effect on Oct 1st, 1999.However, the comparative study on the Creditors' right of subrogation is not enough. And few people research the defect in the basic theory and the real problem in the Creditors' right of subrogation. The author think that it is very difficult to find the problem only bases the law and regulations. We must look for the answer by comparative study and find an effect way to solve the problems in Creditors' right of subrogation.There are many defects in the basic theory and the real legislation in the Creditors' right of subrogation. In this thesis, the author research the Creditors' right of subrogation from basic theory and the real legislation by comparative study.The first part of the thesis, in comparative study on the basic theory on the Creditors' right of subrogation, the author compare the concept, nature, value and function. And find two opposite points in value and function: "only protect creditor" and "balance two parts", "realize creditor's right" and "save creditor's right".The second part of the thesis, in comparative study on the Creditors' right of subrogation in Civil Law of France, Civil Law of Japan and Civil Law of Taiwan district in China. And find the distinctive feature of the Creditors' right of subrogation in our country: set a limit to requisites, restrict object range, exercise by action and exercise to creditors.The third part of the thesis, the author examine the mistakes of Creditors' right of subrogation in our country. The defects, such as too limited requisites, too narrow object range, exercise only by action and exercise is unfair, are caused by the wrong choose in value and function of Creditors' right of subrogation. So, it must be modified. In the basic theory, "balance two parts" is the value and "save creditor's right" is the function. In the real legislation, modify the judicial interpretation by making up preservation, expanding object range, action way can be chosen and exercise to debtor, which can reflect the spirit of just and righteous in law!...