The Study On Subrogation Right Statory Of The Creditor

Debt preservation was that the law allowed the creditor on behalf of the debtor toexercise the rights of the debtor’s rights against the third party or ask the court torevoke the law systems of civil act between debtor and the third party, including therevocation rights of creditor and subrogation right system of creditor in order toprevent harms of creditor’s rights brought by the improper reduce of the debtor’sproperty. Creditor’s subrogation right system was a breakthrough in the principle ofrelativity of debt; the law subrogation right system of traditional civil enriched thetheory of the debt and played an important role in the realization of the protection ofthe creditor’s rights. In Chinese civil law, subrogation right of the creditor meant thatwhen the debtor delayed to exercise to enjoy the creditor’s rights of the third party andinjured creditor’s rights of the creditor, the creditor could on their own behalf of thedebtor to exercise rights against the third party for the preservation of the creditor’srights. Subrogation right of the creditor was a right on material law owned by thecreditor and its effects produced covered the creditor, debtor and sub-debtor. Thesubrogation right system was firstly stipulated by the French Civil Code and later theJapanese Civil Code and Italian Civil Code also stipulated the subrogation rightsystem. The system in France, Japan and other countries had been very complete, butin our country due to the late establishment, theoretical research and practicalexperience were still relatively scarce. In1999, Contract Law of the People’sRepublic of China (hereinafter referred to as the Contract Law) established the systemof subrogation right of creditors, filled our long-standing legislative gap on this issueand had an important theoretical and practical significance. For our theoreticalinsufficiency on subrogation right system of the creditor, scholars had conducted anin-depth research. In this paper, through profiling civil law countries and Chinesesubrogation right system theory, combine theoretical disputes of subrogation rightsystem and the application issues of judicial practice in China and recommend toimprove our subrogation right system of the creditor. The paper was divided into seven parts. The first part analyzed the history of thesubrogation right of the creditor, particularly the establishment of subrogation right ofthe creditor in Chinese civil law, made the basic concepts of preservation of creditor’srights and the creditor’s subrogation right, summed and elaborated the nature of thesubrogation right that subrogation right was a right in material law and also a right forexercising the rights of others. The subrogation right was a conditional breakthroughfor the principle of relativity of the debt and the preservation of creditor’s rights wasthe basic value orientation of the creditor’s subrogation right. Through comparing thelegislation analysis between the civil law countries and regions and subrogation rightsystem, reflect the current legislative status quo of Chinese subrogation right system,strengthen the necessary and practical significance of legislation research ofsubrogation right system. The second part discussed the constituent elements ofsubrogation right system and analyzed from four parts including creditor’s legitimateagainst the debtor from the creditor, the debtor’s delay in exercising their rights andharming the debtor, the expired creditor’s rights of the debtor and the exclusive rightsof the debtor shall not be exercised its subrogation right. It deemed that China shouldexpand the object scope of subrogation right of the creditor. The third part discussedthe exercised method of our subrogation right system in the implementation processand made a detailed discussion of exercising subjects, objects and methods ofsubrogation right of the creditor. The fourth part discussed the core issues such as thelegal effect of the creditor exercising subrogation right. In particular, the effectexercised by the subrogation right of creditors had different points of view, includingthe rule of warehousing and enjoying priority in compensation and did analysis foreach view. The fifth part, by lifting the real cases in the judicial practice, through casestudies, illustrated and assessed the subrogation right system and some of theproblems in the judicial cases, including the issue of subrogation right action, theimplementation system of subrogation and the convergence of litigation system ofsubrogation right. Because of subrogation right action was a new type of litigation, inorder to be convenient to solve the problem; the Contract Law broke the boundariesof substantive law and procedural law and there were still problems of coordination inpractice. The sixth part analyzed aspects of the subrogation right system needed to be improved, put forward a sound legislative proposal, material law could use practicesof civil law countries, took a clear establishment of the conditions, expanded thescope of the object, determined the consequences of the effectiveness, increasedexercising methods and so on. In terms of adjective law, explicitly stipulatesubrogation implementation system subrogation right litigation in civil law andensure the conduct of the litigation of subrogation right in appropriate procedures, soas to achieve effective guidance to the judicial practice, actively resolve the disputesof the parties, improve the efficiency of the litigation and achieve the legislationpurpose of civil law to safeguard the interests of the parties fairly and equitably.