On The Attribution Of Subrogation Exercise Effect

The system of the Creditor's Rights of Subrogation is an important one in Civil Laws, officially originated with the French Civil Code. In the 1999 "Contract Law" of China, Article 73 clearly stipulates the creditor's right of subrogation for the first time in history, but paying no attention to the attribution of the creditor's rights of subrogation, thus causing difficulties to the judicial practice. Thereafter appeared in the judicial interpretations a clear solution to the problem——adopting the "Priority" theory, which was thought of as a breakthrough out of the original theory, but which also triggered great controversy both in theory and practice.By analyzing the rationalities of the doctrine of "Storage Rule", the essay points out that some existing requirements in Contract Law should be changed, and the doctrine of "Storage Rule" should be adopted, before the forthcoming stipulation of the Civil Code of China, bringing a due return of the subrogation rights for the creditor. Under the doctrine of "Storage Rule", the essay also put forward sound proposals to the corresponding provisions for the system of the Creditor's Rights of Subrogation, so as to provide some theoretical support for the incoming Civil Code of China.Generally, the whole essay can be divided into four parts:Part One gives an analysis of some reviews as to the attribution of the Creditor's Rights of Subrogation. By introducing some theories about the attribution of the Creditor's Rights of Subrogation, this part briefly analyses the disadvantages of them, namely the "Priority" theory, the "Equal Compensation" theory and the "Storage Rule" theory.Part Two gives a detailed demonstration of the soundness of the doctrine of "Storage Rule". By introducing the provisions of this very legislation in France, Japan and Taiwan, this part reviews the historical development of the creditor's subrogation rights and from this point of view proves it reasonable to adopt the "Storage Rule" theory in Chinese laws.From the perspective of Jurisprudence, this part demonstrates that the "Storage Rule" is consistent with the system of debts and with the value of the system of the Creditor's Rights of Subrogation, and how to coordinate this system with the mandatory verification system and insolvency proceedings. Moreover, this part tries to prove the soundness of the "Storage Rule" both from the perspective of Game Theory and Transaction Theory in Legal Economics, and from the social functions of the "Storage Rule".Part Three is mainly about the improvement of relevant legislations. This part firstly displays and then retorts the reasons for the "Direct Discharging" theory in the existing law. Next, the thesis points out that the "Storage Rule" theory should be adopted instead, and gives its reasons to support this statement.In the end of Part three, the author proposes amendments to improve the legislation: for example, to adjust the scope of legislations, to regulate the conditions, to expand the scope of the object of subrogation rights, and so on.Part Four: Conclusion. This part reviews the whole text, and gives a concluding statement of the main ideas of this thesis.