Research On The System Of Creditor Subrogation Action

In the spring tide of market economy, Debt is an important civil right, because itconstitutes an important part of market economy, and the relativity is one of itsimportant features, its purpose is to protect the free trade right of the creditor and thedebtor and their rights of disposing the rights. However in reality, some debtors oftengive up or do not exercise the rights on the third people just intend to evade their owndebt. As a result, creditors cannot be achieved, the transaction order of economicactivity and economic security therefore subjected to great challenge. If allowed togrow unchecked, it will eventually give the operation of entire social and economiclife a fatal blow. Therefore, get rid of the debt’s principle of relativity, allowing thecreditor subrogate in its own name to exercise the debtor’s right of third people toaddress these problems has become the realistic choice. The significance of creditor’sright of subrogation system lies in the strengthening the protection of creditor’s rights,just to ensure the legitimate interests of creditors, so as to reply the transaction orderof economic.In1999,"The contact law of the PRC " made specific provision on the right ofsubrogation system. However in practice, There are still a lot of controversy andambiguous understanding with the73rd clause of " the contact law of the PRC " aswell as the application about the right of subrogation provisions of the "Provisions ofthe Supreme People’s Court on Some Issues Concerning Application of ’the contactlaw of the PRC ’", leading to different results in different cases, also to a certainextent, different results effect the integrity and unity of judicial. Studying the practiceof subrogation system is conducive to understanding its intension and value, but alsoconducive to discover the shortage of the institutional and make some improvement.This paper is about31,000word.Besides the preface, the main text divides into threeparts, just to make a inspect on the subrogation system in two aspects from the angleof theory and practical operation, the main contents are as follows:The first sector is about the general comment on the system of the creditor’s rightof subrogation. Subrogation right of creditor is that the creditor could exercise thesubstantive rights belong to the obligor in his own name. The right of subrogation was confirmed in French civil code, and its appearance in China can be traced back to the1929"Civil Code" which was made by the National Government. The nature ofsubrogation is not only based on the right to claim protection of debt and thesubstantive law, but also has the nature of the administrative power and the right offormation. The right of subrogation can be advocated directly to the obligation orthrough the action, but in our country it could be acted only through litigation. Ourlaws and judicial interpretations have make four provisions on the exercise elementsof the subrogation, but there are still some defects.The second sector is about some problems with the system of subrogation actionin the practice. There have been a lot of articles discussing about the theory ofsubrogation system, therefore, this article only discusses some problems in the actualoperation of the system from the angle of the proceedings for right of subrogationsystem in the practice. First, presents the conflicts between the theories of subjectmatter of action and the theory of partial claim in certain circumstances. The theoriesof subject matter of subrogation action and the theory of partial claim should be firstlyintroduced. Secondly, analyses the circumstances of the conflict and figures out somepossible solution. Second, it discusses about the jurisdiction of the subrogation action.Here, the paper introduces the rules of territorial jurisdiction for the subrogationaction and the nature of the rules, thereafter it will discuss about the problems of theagreement of territorial jurisdiction, arbitration agreement and the jurisdiction ofdebtor who has not residence in our country. Third, how to assign the interest due tothe exercising right of subrogation by creditors. In this part, it is mainly divided intotwo situations, one is that the debtor has many general creditors in the subrogationaction; the other is that the debtor has not only general creditors but also debts withsecurity. and then will make a comparative analysis from the angle of law andEconomics on the" rule of warehousing" and "priority principle". Fourth, restrictionsto the rights of the parts in the subrogation action. Here, the article discusses aboutrestrictions to the rights of the litigants in the subrogation action from the angle of thecreditor and debtor. Fifth, the issue of several suits in a subrogation action. In this part,the author will make classification analysis on the situations that the phenomenon ofseveral suits in a subrogation action may occur, and then put forward some propercomments and suggestions.The third sector is about some strategies which can perfect the system of subrogation action in our country. In this part, with the existing problems in theoryand practice based on the current situation of operation of the system discussed oruntouched in the former two parts, the article will give some suggestions fromperfecting exercise elements, extending the scope of the object, clearing the rights andobligations of the parties and other aspects to improve the system.