Study Of The Creditor's Right Of Subrogation

"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 on the law. 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 constituent elements, 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 four 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. Subrogation, which is generated for the purpose of maintaining security of trade, is the result of development of modern commodity economy, and was first established in"Civil Code of France". The subrogation should be a kind of salvage right in essence, and it is a limited breakthrough of relativity of debts. Preserving creditor's rights is the basic value orientation of creditor's subrogation.The second part studies constituent elements of creditor's subrogation. On the basis of a comparative study of Civil Law theory about constituent elements of creditors subrogation in France, Japan and China's Taiwan region, the paper analysis the four elements of creditor's subrogation which regulated in"Interpretations of The Contract Law of the People's Republic of China"one by one, and put out the author's own views and opinions.The third part describes the 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, and he should be granted choice. If the debtor participates in lawsuit, he shall become a third party without independent right of claim. The object of subrogation is limited as"debtor's due money right"in our country, which protects the creditor in an evidently insufficient, way. 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.