Subrogation System Research

As one part of the preservation of creditor's right system, the creditor's subrogation system has developed maturely in France, Japan and other main countries of continental law system. Although China stipulated this system on 1999, there are still some disputes on the lay of legislation and theory, which can be further studied. Therefore this paper studies the relevant issues of creditor's subrogation with the constituent element, legal effect and whether this system breaks the contract relativity. The paper is composed of four parts.The first part is the summarization of creditor's subrogation system, introducing its historical origin and legislative value. About the origin of this system, the viewpoints are not uniform. One point is that its origin is"Jus de Roma", while the other says it comes from"German law", which was inherited by"Code de Civil"of France 1804.Our state's legislation has been lack of this system for a long time. Not until the"Contract law"promulgated in 1999, this legislative gap was filled up. The system's value is to preserve the creditor's right, maintain the security of transaction and to protect creditor's benefits limitedly.The second part is the constituent element of creditor's subrogation. On the base of comparative study of Civil Law theory in France, Japan and China's Taiwan region , the paper analyze the constituent element of creditor's subrogation in China, meanwhile putting up the author's view. The constituent element of creditor's subrogation includes three aspects, which are the debtor's delay, the necessity of preserving the creditor's right, and the debtor's remissness of exercise his right.The third part is the legal effect of credit's subrogation. This part concludes and analyzes the theories on legal effect and our state's legal status. The paper points that the"rules of warehousing"should be adopted because of the base of equity of credit theory. But the traditional theory of rules of warehousing has some defects, especially on the lack of encouragement to the creditor. So this paper put up with some new methods to reform it. The fourth part is the relationship between the creditor's subrogation and the relativity principle of liability. The paper firstly researches the character of credit and the meaning of the relativity principle of liability, then discusses that whether creditor's subrogation breaks the contract relativity. The two main factors of the relativity principle of liability are"specifically subject"and"specifically content". By the author's analysis, the creditor's subrogation doesn't break the two factors, so it doesn't break the relativity principle of liability.