On The Perfection Of China's Subrogation

The creditor's subrogation of debt preservation is a breakthrough of the privity ofobligation. The subrogation system in traditional civil law has enriched the debt theoriesand showed the value of principle of good faith. Article 73 of China's Contract Law hasestablished the subrogation system, which is stemmed from the subrogation system intraditional civil law but has some difference. This article commenced with the compareof China's creditor's subrogation system with the traditional one, shows the differences,on the base of analysis the creditor's subrogation theoretically dispution and theapplicable problem in the judicial practice, the artical brought some suggestions andimaginations forward to perfect the creditor's subrogation of our country.Part One of this article is a general description about the theoretical basis,legislative intention and value of subrogation system in traditional civil law. Itslegislative intension is to revert the debtor's property, that is, to put the assets into thepool, so the creditor didn't have the privilege to be paid. France, Japan and China'sTaiwan Region all have the relevant legislation.The second Part of this article is comparetion between the creditor's subrogationsystem of our country and the traditional one. Comparing to the traditional civil law,China's subrogation system shows the different legislative characters with the unitary ordualistic legislative patter. In structure, China's subrogation system is only set in thespecial law of debt, which greatly restricts its application. In content, the subrogationsystem of our country is comparatively relevant coarse and different with traditionalsystem as follow: setting in the fulfillment of contract, having the intention toimplement the debt, the creditor having the effect, having the nature ofGestaltungsklagerecht, its application being limited to debt of contract, object beingconfined money and using litigation to achieve.Part Three of this article analyses the disputes on China's subrogation system,especially on the effect of application. There are opposite opinions on whether toabolish subrogation. Actually, subrogation in substantial law and the one in procedurallaw have different functions and cannot replace each other. Therefore, althoughexecutive law has relatively maturer regulations, subrogation in civil law should not becanceled. China's Contract Law prescribes that debtor directly pay the creditor onjudgment, so subrogation has the nature of Gestaltungsklagerecht. On the actual effect,analyses deficiencies of theory of paid in precedence, theory of balanced pay, theory ofdirectly pay. China's subrogation should resume the traditional rule of "being put intothe pool of assets "and the subrogator should take allegation to be paid and tocountervail.In part Four, there are further discussion on the application of China's subrogation,including execution of subrogation, litigation of subrogation. As subrogation only existsin execution progress, which is not compatible well with substantial law, and notsufficient in concrete content and measures, it is necessary to improve on it. Assubrogation uses a new type of litigation, while Civil Procedural Law lacks of relevantregulations, to solve the problems easily, Contract Law moderately breaks through theborderline between substantial law and procedural law in legal techniques by addingsome procedural provisions, but there are still problems of compatibility.Part Five of this article sets out proposals on perfecting China's subrogationsystem. The abolishment rule of "putting the asses into the pool"deviates fromsubrogation's intension of legislation and make it conflictting with other systems. Onthe basis of the comparison and analysis above, it proposes that China's subrogationsystem should adopt the legislation mode of dualistic, namely, should both be set insubstantial law and procedural law. In substantial law, China's legislation should followthe prevailing continental rules, by prescribing subrogation system in Civil Code andspecially in the general rules of debt, and making sure the establishing elements,expanding the scope of objects, making sure the effects and adding applying modes. Inprocedural law, when Civil Procedural law is to be amended, the system of executingthe debt of the executee should be established, subrogation execution system should beprescribed in civil execution procedure, subrogation litigation system should beprescribed in civil litigation procedure and the concrete problems in subrogationlitigations shoud be guaranteed by relevant procedures .