Research Of Creditor’s Subrogation Right

In order to settle debt chain, our country defined that asking for repaying by thethird party is one of the implementing measures (Rules About PRC Civil Actions,1992). When the debtor could not repay, the creditor could ask for repaying fromsub-debtor. This right is only valid in execution phase. If the third party raisesopposition to execution, executive court doesn’t need to examine the matter andcould judge to stop implementing. This rule was only the rudiment of subrogate. Butit worked very positively in juridical practice. As debt protection, subrogation rightfirst appeared in PRC Contract Law in1999. And according to Explanations forContract LawⅠ, there were strict limiting conditions in implementing. There werefour requirements for subrogation. First, the creditor’s right is legal. Second, thedebtor doesn’t want to repay and harms the benefit of creditor. Third, the debt is indue. Fourth, the debt is not exclusive to the debtor.Scholars have different viewpoints in these four requirements. Some scholarsthink that the subrogation breaks through the relativity of debt. In order to avoidharms on debtor and the third party, requirements must be strictly limited. But somescholars also think requirements in Explanation for Contract Law Ⅰ are over strict,which makes the subrogation is hard to implement. The objects range of subrogationshould be enlarged and make the requirements easier, so the right could be moreconvenient to be implemented by creditor. The author agrees the later viewpoint.According to the collected data, there are only267subrogation cases since it issued.As a right in civil law, the data shows the effect of subrogation doesn’t reach what weexpected and the right of creditor hasn’t been well protected. In previous subrogationrelated cases, a lot of them were rejected. The reason was the creditors couldn’tsufficiently prove they meet the4requirements. And the second one, the debtordoesn’t repay and harms the benefit of creditor, is especially hard to prove. If thedebtor expresses he has tried to propose right to debtor many times, such as ask forrepaying from sub-debtor, it is hard to prove whether the debtor doesn’t want to repay. According to the thirteenth rule in Explanations for Contract Law Ⅰ, thedebtor doesn’t want to repay is defined as: The debtor doesn’t repay in due and didn’tuse action and arbitration to protect the right of creditor. This rule reduce thedifficulty in proving and is extensively applied is judicial practice. There was alsodiscussion about the rule of subrogation objects. the thirteenth rule in Explanationsfor Contract Law Ⅰ defined the subrogation objects as the due debt about money.This limited the subrogation objects to creditor’s right. The object range ofsubrogation is enlarged which means the protection range of creditor is enlarged. Butthe effect needs to be judged by the rules about object.Refer to the practical situation of subrogation right, author has suggestion asfollowing: First, optimize the requirement of subrogation. Next, well coordinate therules about creditor’s subrogation right in substantial law and executive routine.Finally, combine subrogation right and enterprise liquidation system to play itsfunction of debt assurance.