On The Right Of Subrogation

Due to the unique value of the system of the subrogation right,it can effectively guarantee the realization of creditor' s rights,defend the law's dignity and visualize the social justice. The system of the subrogation right first appeared in France in the form of written law,and followed by other countries and regions enthusiastically.Up to now,lots of countries have set up the system of subrogation right,but it appeared that such system is not so mature in these countries.The existing problem of this system is inconsistency of this theory,eg.,there is still no consistency in the legal nature,the essential conditions of constitution,the scope of exercising,the ways of exercising,the legal effect of exercising of the system of subrogation right,and many problems existing in the litigation of subrogation right.The inconsistency in theory inevitablly leads to the bad condition,even chaos.So it is necessary to make a further study in this system,to have a thorough investigation of various doctrine,in order to make perfecton of this theory by our hard work.The realization of legislative intent or value function can only be achieved only after the perfection of theory,otherwise it can not be optimistic.For instance of our country,due to the defect of this theory,it seldomly be used in the practice of judicature,and if sometimes be used,for its intrinsic deficiency,the party of civil case can hardly feel the superiority of its value,and find that there is no balancing point of realizing the value of this system.It can not satisfy the creditor's need of guaranteeing their rights,make them hard to feel the fair and just because of the loss of balancing point.The thesis can be divided into four parts:The first part mainly introduces the concept,characteristic,evolution,nature of the system of subrogation right.It focuses on the view of comparative law and the condition of legistation of our country and the problems of it;The second part mainly introduces the scope and ways of exercising the subrogation right;The third part mainly introduces the traditional theory of 'rule of warehousing'.It faces the breakthrough by the judicial explanation of supreme court,the theory of which is called 'compensation priority'. This part starts with the basic principle of 'equity and justice',try to realize the best juncture of balancing every partie's interests.It challenges the theory of 'priority right of the subrogee' by citing the existing cases and the possible cases;The fourth part mainly introduces the revelant problems of the system of subrogation right.