| Article 73 of < sets up the system of Creditor's subrogation claims ,and the People's Supreme Court's < stipulates the concrete operative procedures for Enforcement System of the Subrogation Claims which has brought traditional relativity theory ,in which its aim lies in opening another new road for the Enforcement of Creditor's Claims ,However the anther of this essay think essay think there are still some questions to be discussed on whether the designs of the system could achieve its aim as the legislators originally envisaged .The Purpose of this essay is mainly to reviews the System of Subrogation Claims ;and to examine it from different points of view ,Through studies of historic development of the System of Subrogation Claims and through comparison among civil legislations of France ,Japan and Chinese Taiwan and through the investigations of the Enforcement System of Subrogation in German Civil Litigation Law ,it comes to the final conclusion that it's indeed unnecessary to establish the Subrogation System in China and which should be substituted by Enforcement System of Subrogation in Enforcement Procedural System .The first part of this essay is the comparative studies on the historic development of Subrogation System of classic civil law and the legislative cases of foreign states and Chinese Taiwan region .There is no concerned stipulation about the Subrogation System in Roman law, but which specially regulated in Article 1166 in French Civil Code. According to writer's view of this essay, the purpose of setting up Subrogation System is to use it as a new way for the enforcement of Creditors' Claims in the States whose Enforcement Systems are not well developed .There is stipulation about Subrogation System in Japanese civil law which originated from French Civil Code .There is also the stipulation on Subrogation System in Taiwan civil law since it ensued from Japanese civillaw model .However there are often some restrictions to the applications of the Subrogation System in the civil laws .The general theory about Subrogation System in traditional theory such as the prerequisites of its establishment ,the principle of Entering Bank Rule and the standards of lack of capacities of Debtors etc., were all thoroughly discuss on the level of theory .This essay elaborates, according to common cases, prerequisites of Pieces Claims, Specific Claims and the Deposit Acts (abide by the common doctrine of Three Prerequisites );and that the effect of application of the Subrogation System is subject to the Debtors .However the effect of Subrogation stipulated in < is subject to Creditors which is quite different from the traditional theory of Entering Bank Rule .The basis of this theory is He Who Exercises and Who Benefits ,and putting this as the Due Basis of the Distributions of the Enforcement Subrogation System .Meantime to exclude the "Gains with no pains "of the "Convenient -Car Taker",This essay ,after comparisons with the stipulations of the Subrogation System of French, Japanese and Taiwan regional civil laws ,comes to the conclusion that the methods of enforcement stipulated in French Subrogation System is not useful to prevent the deduction of the liable properties of Debtors .While Japan and Taiwan adopted the parallel system ;to imitate the substantial regulations on Subrogation System of French Civil Code on one side and to stipulate the Deposit System in dual law on the other side .As a result it causes the Subrogation System in substantial law unnecessary when the Deposit System in substantial laws and procedural laws are combined together to secure the Subrogation Claims.Therefore designing of the Subrogation System must be very cautious .In the category of application of Subrogation ,though the judicial interpretations unequivocally stipulate "Pay By Money ",there are first of all still some otherquestions to be discussed theoretically .Secondly, there are existing many inconveniences in its proced... |
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