The Subrogation Study

As one of the measures to save the creditor's rights, the creditor's subrogation is comparatively perfect in France, Japanese etc. However, it emerged in our country very late, we didn't fetch it in until we established uniform contract law in 1999. As the Contract Law's rules were too fundamental and the explanation of Contract Law from the Supreme Count broke through the traditional theories of civil law, some problems in theories and practices have not been solved well and needed to amend urgently. With the draft of Civil Law put in Standing Committee of National People's Congress or the advising draft of Civil Law designed by some experts, our institutions of creditor's subrogation ever have many place need to discuss. So there is very important significance in theory and realism if we enforce the research on the creditor's subrogation before the Civil Law is formally promulgated.This article adopts historical analysis technique to discuss the creditor's subrogation's emergence and developing and bring up the idea that our country should enhance the institution,- At the same time it adopt comparing - analysis technique to do horizontal and vertical research on French, Japanese, Taiwanese and our country's active legal of the subrogation and point out the shortage of our active legal of the subrogation, consulting the articles of the draft of Civil Law designed by the experts and also bring up the advices on how to perfect the creditor's subrogation institution.Besides the introduction, This article is divided into five sections.The first section is the general analysis on the creditor's subrogation. Beginning with the creditor's subrogation's developing history, I defined the concept of the creditor's subrogation and pointed out the subrogation has six features such as statutory, entity, expansionary, subrogational, protective and complex, then I analyze relations between the creditor's subrogation and five relative civil rights involving creditor's right of revocation, agent, releasing creditor's rights, right of insurance subrogation and right of subrogation of application to enforce, so I think the creditor's subrogation has three functions with protecting creditor's interests, preventing obligor from evading debt andremedying the institution of enforcement. At last I proposed when we establish the Civil Law we should put the subrogation institution in general provisions of creditor' rights to upgrade the creditor's subrogation's legal degree and exert this institution's functions better.The second part is about the object of the subrogation. The article adopt comparing-analysis technique to compare our provisions about the object of the subrogation with French, Japanese and Taiwanese provisions. Then the conclusion in the article is it's not good to protect creditor's rights that our Contract Law provides the object of the subrogation is creditor's rights and the Explanation of Contract Law ever limits it in creditor's rights with money, so the article proposed to amend these provisions, magnifying the scope of the object to creditor's rights, rights on object, claim from rights on object, forming right, rights in law and obligor's right of subrogation, revocation, counteraction or saving activities.The third section is about the creditor's foundation elements. With the provisions I think there should be five elements. Firstly Between the oblige and the obligor there must be legitimate and certain credit and debt relationship, secondly the creditor's right expired and following obligor unwell to enforce his rights, fourthly the obligor's actions impaired the creditor's interests and the last is the obligor's rights weren't specially own to him.The fourth section is about manners to enforce the subrogation. Seeing many country's law there are two modes, one is double-way mode that provides litigation and straightly enforcement manners at the same time, the other is single-way mode that only provide the litigation manners. Our legislation adopted single-way mode, however, limiting the way...