Analysis Of China's Existing Subrogation Rights System And Its Perfect

The system of creditor's subrogation is a important system of civillaw originating formally from Civil Law of France. Article 73 of theContract Law of PRC prescribes the system of creditor's subrogationdefinitely. The system of creditor's subrogation played a important rolein ensuring the discharge of creditor's right, though some problems arefound in the system which is not adaptive to the society practices withthe development of economy. The aim of the Article is to: analyze thenecessity to set up a perfect system of creditor's subrogation, connectscientifically legal theories with currently complicated practices inChina, point out the deficiencies in the current system based on theanalysis of legal connotations of the current system of creditor'ssubrogation and provide schemes for perfection. First, the Article analyzes the necessity to set up a perfect systemof creditor's subrogation based on the cause to set up the system ofcreditor's subrogation legally, the aim to apply the system in practices,and the increasingly complicated and secret way of evading debts ofdebtors. Secondly, the Article introduces the history of the system ofcreditor's subrogation, main legislation of creditor's subrogation inforeign countries, Taiwan, Macau and all the current legislation of itin China. Thirdly, the Article analyzes the legal connotations of the currentsystem of creditor's subrogation from four aspects including: legalcharacteristics, constitutional elements, way of exertion and bindingeffects. Finally, the Article points out the deficiencies in six aspectsincluding: layout of legislation, object of the right, constitutionalelements, way of exertion, binding effects of exertion and sanctions oninterference behaviors against the exertion of the creditor'ssubrogation, based on the current practices and the detailed analysis oflegal connotations of the current system of the creditor's subrogationin China, referring to reasonable legislation and theories in foreigncountries and regions. The deficiencies in the current system ofcreditor's subrogation in China include: The system of creditor's subrogation in China is prescribed in theContract Law, a kind of special law in creditor's right law , whichresulted in the fundamental deficiency in practice. Object of the creditor's subrogation is confined to the maturecreditor's right involving payment of debts, which resulted in aexcessively narrow scope of object. Constitutional elements of exertion on creditor's subrogation isconfined to a excessively narrow scope, which is not favorable to theexertion on the right to ensure discharge of creditor's right. Way of exertion on subrogation is confined to by judgment. Exertion on creditor's right of debtors is not put some limits onin the process of exertion on subrogation. Sanctions on interference behaviors against the exertion of thecreditor's subrogation need to be reinforced. Aimed at these deficiencies, creditor's subrogation in the Articleis defined as the right to safeguard the mature creditor's right forcreditor to exert the right of debtor which is not belonged to the debtorexclusively in the way of virtuous manager and in the name of the creditorwhen the debtor did not exert its right. The system of creditor'ssubrogation should be prescribed in general principles of creditor'sright law in civil law in order to solve the deficiency of the excessivelynarrow applicable scope of the current system. Object of creditor'ssubrogation should includes: creditor' right based on contract,creditor's right not based on contract, claim for compensation, righton formation aimed at assets, debtor's subrogation and right ofrevocation, preserving right of assets, affirmance right aimed at thebelonging of assets, and right of litigation. Constitutional elements ofcreditor's subrogation should be prescribed appropriately forconvenient exertion on debtor's right in or...