Research On The Right Of Creditor’s Subrogation

The creditor’s subrogation right is the important content of the general securitysystem of the debt, which have a important significance to preserve creditor’s rightsand prevent the debtor negative to exercise their rights. The creditor’s subrogationright originated in the French civil code, whose most important characteristic is thebreakthrough of the relativity of debt, given the creditor subrogation rights to use thedebtor’s rights.There are many different theory of subrogation right’s nature, includethe theory of the right of formation, the right of claim,the power of right. The authoragrees with the theory of can right, that the creditor subrogation authority belongs tothe intervention right.The creditor subrogation authority legislation of China starts with the "theContract Law", then "the First Judicial Explanation of Contract Law" complete thewhole system. For a variety of reasons, there are many difference between thetraditional creditor’s subrogation right system and the Chinese.These characteristicsalso become the main reason why Chinese creditor’s subrogation right can’t widelyapplied:1, The different rules of repayment. China abandoned the traditional rule,andapplied the rule of directing compensated.2,A narrow range of objects. Different fromthe traditional system, Chinese subrogation right only applies to the expiration of thepayment of money claims.3, The single way to exercise subrogation right. Different from the traditional system, Chinese system does not allow creditors to exercisesubrogation right in non-litigation manner.4, the rigid elements of subrogation right.A narrow range of objects, our system of Subrogation is not according to the differentformulation of the object to different exercise elements, resulting in the rigid elementsof subrogation right.In order to solve the defect of the subrogation right system, the author proposesto return to the traditional system, and to absorb the positive experience of Japanesesubrogation right. The specific measures include the following:1,The return totraditional rule of repayment, return to subrogation right of the security features of thedebt.2, Object range expansion.3, Allow creditors to exercise their rights innon-litigation manner.4, Summed up the three elements of the exercise of subrogationright: the debtor has been caught in the delay; the debtor is indolent in exercising thepower; necessary to the preservation of claims of creditors. For different objects,distinguish further refine the specific meaning of the above three elements.5,absorption of Japanese creditor’s subrogation theory, given the subrogation right topreserve the role of specific claims, to expand its scope of application.To improve the Chinese creditor’s subrogation system, we have to follow thetradition, and keep pace with The Times. It is necessary to absorb the essence of thetraditional system, but also to learn the doctrine of the positive experience of newviews. We will not only learn the specific experience in legal system from thedeveloped countries, but also learn their entrepreneurial spirit and a pragmaticattitude.