The Subrogation Study

"Contract Law" of our country promulgated in 1999 and "The Supreme People's Court's Interpretations of Certain Issues Concerning the Application of The Contract Law of the People's Republic of China (Part One)" stipulated creditor's subrogation. Filling up a permanent space in legislation of our country, the establishment of creditor's subrogation is of great theoretical and practical significance. However, due to the fact that creditor's subrogation under current legal structure of our country changes "rules of warehousing" into creditor's direct being compensated, which is different from the theory of creditor's subrogation of the traditional civil law in aspects of constitutive requirements, object, exercise methods and legal effect. The changes may enable the creditor gain equivalent value, which are, however, contrary to the intentions of logical system and the purpose for the establishment of creditor's subrogation, legal fairness and justice, legal maneuverability and mutual coordination and unification between laws. Therefore, it is necessary to have further discussion about relevant issues of the creditor's subrogation and restructure creditor's subrogation of our country. This paper studies relevant issues of creditor's subrogation with the methods of value analysis, historical review and comparative research. The thesis is composed of five parts.The first part is the basic ideal of creditor's subrogation, providing a general view of the historical origin and development, nature of creditor's subrogation and value orientation of creditor's subrogation in 3 aspects. Subrogation, which is generated for the purpose of maintaining security of trade, is the result of development of modern commodity economy. It was first established in legislation of Code Civil. Consequently, Japan and Taiwan used the case of French legislation for reference, and further developed and improved the theory of subrogation. The nature of subrogation has been the bone of contention in the theoretical circles. Through analysis of the nature ofsubrogation, this paper recognizes its "legal" management right. Creditor's subrogation is a breakthrough of relativity of debts, and the purpose of its establishment is maintaining the two values, namely, balancing protection of creditor's benefits, and maintaining creditor's freedom, so as to preserve creditor's rights, which is the basic value orientation of creditor's subrogation.The second part studies constitutive requirements of creditor's subrogation. Creditor's subrogation is a breakthrough of the contract relativity principle. In order to balance the two values between the "protection of creditor" and "freedom of creditor's activities", it is necessary to strictly limit constitutive requirements of creditor's subrogation. In constitutive requirements of creditor's subrogation, traditional theory pays attention to preserving debts while regulations of our country pays attention to implementing subrogation, especially abandonment of "constitutive requirements without payment ability" and extremely loose regulations for "idle exercise" constitutive requirements cause suspicion of hypercorrection for creditor's subrogation of our country. Aiming at such a status quo, this paper suggests constitutive requirements of creditor's subrogation of our country.The third part describes exercise of subrogation. This part studies the three aspects of exercise principal part, exercise object and exercise methods. First, it discusses about the issue whether creditor can become the principal part of subrogation according to public law. Then it discusses about status in litigation of debtor, pointing out that the debtor can but not must participate in lawsuit of subrogation, should be granted choice. If the debtor participates in lawsuit, he shall become a third party without independent right of claim.The civil law system of France, Japan and Taiwan region adopting traditional law system regulates the object of subrogation as "debtor's right", while that of our country limits it as "debtor's due money right", which protects the creditor in an evidently insufficient way and fails to agree with the trend of international legislation. This paper suggests relevant rights, such as creditor's non-money rights, right of various properties,right of formation, subrogation and right of rescission, should be object of subrogation.The thesis does not consider that limiting exercise methods of subrogation to lawsuit is proper. Exercise of subrogation in a direct way can not only provide agent concerned with one more choice for relief channel, but also release lawsuit burden for court and agent concerned.The fourth part is about exercise effect of subrogation. This part discusses about the two aspects of exercise effect of subrogation over agents concerned and adjudication of subrogation. Exercise of subrogation is legal binding power over debtor, creditor and sub-debtor. In exercise effect of subrogation, our country changes "rules of warehousing" into direct being compensated, which benefits protection of creditor's right, but destroys the principle of creditor's equal rights and is contrary to the purpose of establishment of creditor's subrogation. Therefore, it can only be expediential and should be amended in the legislation of the civil law in the future.The fifth part describes legislation improvement of creditor's subrogation of our country. This paper first compares creditor's subrogation of our country with creditor's subrogation of traditional civil law. Then, this author puts forward suggestions for legislation from the aspects of adjustment of legislation system, proper extension of object scope of subrogation and addition of exercise methods of subrogation.