Subrogation System Research

Creditor's subrogation system is one important civil law system in civil law countries. As a way to secure debt, it breaks through the traditional principle of debt relativity in civil law, and plays an important role in guaranteeing the implementation of debt. There are like prescriptions in our country's contract law and it's explanation. They further improve the guarantee system of creditor 's rights in our country. But comparing with traditional subrogation system, there are shrinking and expanding in content, which evokes controversy in academic circles. In this article the author studies the subrogation theory in civil law counties and our country, analyses different prescriptions, absorbs some new ideas, tries to improve subrogation system in our country. The main content includes:The first chapter is about the summary of the creditor's subrogation system, including it's history and development, concept and characteristics, theoretical foundation and legislation values. Subrogation right refers to a creditor's right to exercise a debtor's non-exclusive right to a third person in his own name when the debtor is slack in exercising his right to the third person so as to make it necessary to protect the creditor's right. It is a right in entity law and is a special right of claim. It is a legal claim to exercise other person's right with a character of relief. After this, there is analysis of relative concepts.The second chapter discusses important composing conditions for subrogation: a debtor delays in performance and is slack in exercising his own right, which makes it necessary to protect creditor's right.For delay in performance, the author thinks it important to find a balance point, which should be the time to perform. It is a principle that the debt is due to perform when the subrogation right come into existence, but sometimes a creditor can claim this right in order to protect the debtor's right even if the debt is not due.For slack in exercise his own right, the author thinks it means the debtor can exercise his right but refuse to do so ,which not only includes the fact that the debtor fail to exercise his right but also considers the debtor's subjective state.For the necessity to protect the creditor's right, the author analyses two theories:...