Right Of Subrogation To Exercise The Legal Effect Of Attribution Research

After the generation of position power realization benefit ownership question always is a question which the judicial solid service and the legal science theory extremely pays attention, also is the entire generation of position power system has the key, simultaneously also is the judicial practice must face with the solution question, whether does it involve to the creditor's rights truly can preserve but further comprehensively maintains the creditor actual benefit. Whither after the creditor generation of position power lawsuit realization benefit should turn over to? The creditor, debtor who is authorized to is assigned to the property which the inferior debtor pays? At present the academic circles disputed bigger, some people thought must directly be assigned to by the creditor (namely is directly recompensed rule); Some people thought should first be assigned to by the debtor, then repays again by the debtor to the creditor (namely goes into storage rule); Even also some people thought should first by the court storage, then by the creditor propose the application enforces. At present mainly by "directly is recompensed the rule" and "goes intostorage the rule" two main viewpoints. Our country "People's Republic of China Contract Law" (hereafter referred to as "Contract Law") obviously to intend to avoid this question only to make the general principled s tipulation in 73rdsecond section (namely the generation of position power to exercise the scope to be limited to by creditor's rights. The creditor exercises the generation of position power essential expense, bears by the debtor); But the Supreme People's Court about is suitable "People's Republic of China Contract Law" certain questions explanations (1) (Hereafter refers to as "Contract Law Explanation") the 20th stipulation that, Creditor the generation of position power lawsuit which mentions to the inferior debtor after the people's court tries to recognize the generation of position power establishment fulfills by the inferior debtor to the creditor pays off the duty, between the creditor and the debtor, the debtor and the inferior debtor the corresponding creditor's rights debt relations namely gives the elimination. Thus it can be seen this judicial interpretation acceptance is the first viewpoint namely "directly is recompensed the rule". This "went into storage the rule" with the tradition directly to have the contradiction, because the academic circles mostly accepted and the thorough study is "goes into storage the rule", how understood and utilized these to stipulate solved the problem which the generation of position power lawsuit case was we must face. As a judge, I in principle agrees with "Contract Law Explanation" the viewpoint, but this explanation looked resembles the article many, the explanation quite complete, many questions elaborations clear, the author tries from "go into storage the rule" and "directly is recompensed the rule" the rule conflict to begin, exercises the after legal effect ownership to the generation of position power system as well as a generation of position to make to be comprehensive but a clearer analysis, in order to serves well for the judicial practice.First part: Carries on the elaboration to the generation of position power system related content, and exercises the legal effect ownership related viewpoint evaluation to the generation of position power. And briefly introduced "goes into storage the rule" the characteristic as well as "directly is recompensed the rule" the rule characteristic, and points out the two the conflict. Second part: Through to "goes into storage the rule" the critique and to "directly is recompensed the rule"the rule merit to carry on the analysis, through to "directly is recompensed" the rule and the debt relativity question analyzes and compares, obtains the conclusion "directly to recompense the rule" certainly not to violate the debt the relativity, our country chooses "directly is recompensed the rule"is adapts our country present situation, is rational. Third part: Our country chooses "is directly recompensed the rule", in judicial practice process, also has some problems.Regarding generation of position power system, but also has the necessity which the need further consummates. Gives the revision comment to our country generation of position power system legislation consummation: If expands the generation of position power the object scope, the way which the increase generation of position power exercises, consummates jurisdiction aspect stipulation and so on, and formulates the people statute book to our country to propose the use "directly is recompensed the rule"the suggestion.Conclusion: Passes the view full text, summarizes own viewpoint, and pointed out already studied the question regarding generation of position power system which and involved and the solution question for the others has not inspired.