Theory And System Basis Of The Creditor Subrogation Preferred Payments

When the Creditor subrogation has been exercised successfully, whether the Subrogate creditor has the rights to pay for the Creditor's rights of himself (which is between the Debtor and the Creditor)with the Subject Matter of the Subrogate debt(which is between the Secondary obligor and the Debtor) first? This question has been disputed for a long time.This article includes preface,text and epilogue. In the part of preface the author briefly introduce the connotation of the Creditor subrogation preferred payments and the meaning of the topic and the present situation of the research. In the part of epilogue the author summ up the content of this article. The part of the text is the main body part is this text, it is divided into four parts.Part1:China's current creditor subrogation authority suffer countervail system and relative understanding. The position of priority has been taken by the Law of contract interpretation,20 obviously.However,it never completely included the Creditor subrogation in the traditional sense,so it can not be called that the System of priority liquidation has established in the system of the Creditor subrogation In China mainland,and it is just an expediency temporarily.Part2:The theoretical basis of the right to seek preferred payments.There are a lot of legitimacies in legal values about the System of Priority liquidation in the Creditor subrogation as follows,and these just do not exist in the Egalitarian liquidation.these are efficiency,fair,equality,personal sdandard of civil law,and humanity.In addition,the other theories have provided some powerful seasons for the Priority liquidation.Part3:Creditor subrogation authority preferred payments from the system basis. When I explore on the Approaches to realize the System of liquidation of the creditor subrogation according to the priority,roughly,there are two approaches about it:the mode of direct liquidation,and the mode of indirect priority liquidation. In the system basis about the mode of indirect priority liquidation,taking the subrogation receiving as a premise,then by the system and sell of offset, and the possibilities in which the courts in fact recognize the effect of the priority liquidation,the system is able to make the subrogate creditor get a kind of right on priority liquidation. The views about the mode of direct liquidation are mainly the view of founding in substantive law on subrogation directly by indemnitee effectiveness,and the view of the procedural law of procedure simply and preferred payments.Part 4:summary:I prefer the second ones,and this is mainly based on three reasons which are the limit from the system and theoretical basis of civil,the constraint from the object of subrogation,and the confusion of the system from the direct liquidation.In a nutshell,it must adapt to the legal system and civil law theory that have been there.