On The Right Of Subrogation

Creditor subrogation right system is one of the most important contents of debt theory. It is established for protecting the benefit and trade safety of creditor.Clause 73 of Contract Law of People's Republic of China & Clause 11 through 22 of the Interpretations of the Supreme People's Court on Relevant Issues Regarding Applications of the Contract Law of People's Republic of China, have prescribed the conditions and jurisdiction of subrogation lawsuit, lawsuit status of party concerned strictly, and have established the subrogation right system in China. The establishment of the system is relative breakthrough for debt. It is embodiment of external effectiveness of debt. And it is the important regulation to protect the interests of creditor. Subrogation right system is one of save methods of debt. Creditor subrogation right means when debtor slacks his or her duty to the third person so as to be a bad influence on realization creditor's rights, and the creditor subrogates to wield the rights that the debtor takes the rights from third person in the name of his or her own for protecting his or her own rights. Subrogation right system has been introduced in China for solving the problems of "Triangle debt" and "hard execution". However, after a few years for judicial practice, it seems that the current situation is far from the original expecting results of legislator. Subrogation right system was tried to be analyzed in this thesis.The thesis was started with the elementary theories of creditor system. The nature of creditor subrogation right system and juristic characteristics were analyzed at first. Subrogation and interrelated concepts were differentiated, analyzed and discriminated. 4 constitutive requirements of creditor subrogation right system were emphasized and expatiated: the borrow-and-lend relationship between creditor and debtor must be licit; debtor takes creditor's rights which do not belong to the debtor per se exclusively; the debtor slacks to exert the mature creditor's right; the debtor slacks to exert his or her right so as to damage to the creditor. The thesis then touches the validity after the exertion of subrogation right on the creditor, sub-debtor, debtorand other creditors.Wise Chinese learn by other countries' mistakes. The author reviewed the legislation of subrogation right system in those countries which use continental genealogy of law, mainly studied the traditional subrogation right system in France, improved subrogation right in Japan, and revised subrogation right system in Taiwan region. From analysis and comparison of the creditor subrogation right system abroad and in Taiwan region, the author believes legislation for creditor subrogation system in China meets the needs for economic growth and judicial construction. The subrogation right system in China has unique Chinese characteristics compared with other countries: the object of subrogation right legal relation is narrow, and only localized for the debt with paying money. The exertion rights of subrogation right system in China can only be carried out by litigation in court. Arbitration and relief in private were excluded. The method is simplex; preferential right for accepting indemnity is prescribed in the form of law: i.e. the sub-debtor discharges to creditor, and turn "performance principal" into "discharge directly". Therefore, procedural significance as well as substantive significance lies in the creditor subrogation system in China.Existent litigation issues on subrogation right system in China have been discussed in the thesis from the point of view of adjudication in practice: jurisdiction issue about creditor subrogation; Legal status of litigation party of creditor subrogation, especially debtor; issue of burden of proof in subrogation right litigation, and issue of discharge order among couple of creditors. The author conveyed her points of view and measures aiming at these issues.In view of the features and existent problems of creditor subrogation right system in China, the author believes that it is necessary to perfect subrogation right system from the following aspects: First, the legislation system should be adjusted. As preservation of debt, the creditor subrogation right system ought to be prescribed in general principles of the civil law. Secondly, the right range of the creditor subrogation is localized on "mature creditor's rights" and "creditor's rights withpaying money", and it makes against to the exertion of subrogation. The following subrogation content can be added to solve the problem: ① the Rights of Thing and right of claim for real thing; ② right of formation; ③subrogation right and repeal right; ④the right in litigious law or some right in public law. Thirdly, enhance the exertion of subrogation right, and execute litigation and arbitration at the same time. Fourthly, to perfect the regulation of Procedural Law so as to provide lawsuit guarantee for creditors to exert subrogation right.